Famed Harvard Law School professor emeritus Alan Dershowitz, a key part of President Donald Trump’s impeachment legal defense team, is under fire for a line of argumentation he has advanced this week on the Senate floor.
“Every public official that I know believes that his election is in the public interest,” Dershowitz said on the floor, as reported by Politico. “And if a president did something that he believes will help him get elected — in the public interest — that cannot be the kind of quid pro quo that results in impeachment.”
According to Politico (which, incidentally, uses the term “unitary executive theory” while clearly not understanding what it means), Dershowitz’s contention is “well outside the mainstream of legal scholars.” The National Law Journal, which is widely read within the legal profession, also has a paywalled piece today entitled, “‘Complete Nonsense’: Scholars Denounce Dershowitz’s Trump Trial Arguments.”
But it is those “scholars” who are, in fact, the ones peddling nonsense. Alan Dershowitz is emphatically correct. A president’s subjective motives and nebulous fusion of political and national interests cannot transform constitutionally lawful conduct, such as a president engaging in a core foreign policy function, into an impeachable offense.
What’s more, a “quid pro quo,” if conducted within the context of a political actor carrying out his constitutional authority, amounts to constitutionally protected free speech. I made this argument in November both here at The Daily Wire and at the New York Post.
“In 2014, a Texas grand jury indicted then-Gov. Rick Perry for supposedly abusing his official capacity when he threatened to withhold $7.5 million in funding for the Travis County district attorney’s public integrity unit unless the troubled DA resigned her post,” I wrote at the Post. This was clearly a “quid pro quo,” but it was one executed in the context of Gov. Perry exercising his authority clearly vested in him by the Texas Constitution. Therefore, I noted that “an illustrious and ideologically diverse group of legal scholars … argued that the First Amendment protects a governmental official’s right to threaten taking a lawful action to attain a preferred political outcome.” They were vindicated:
The Texas Court of Criminal Appeals, which is the Lone Star State’s highest court for criminal cases, agreed. “Public servants have a First Amendment right to engage in expression, even threats, regarding their official duties,” the court held. “Many threats that … public servants make as part of the normal functioning of government” would be criminalized under the special prosecutor’s legal theory, the court continued.
Returning to the current impeachment of President Trump, Democrats would be hard-pressed to argue that constitutionally protected free speech can somehow fit the “high crimes and misdemeanors” impeachment criterion of Article II. After all, political exchanges for political value are utterly commonplace in our politics: Every high school civics student learns about the congressional practice of logrolling.
And it is simply implausible to argue that a political actor’s exercising his constitutional authority and engaging in constitutionally protected free speech could somehow become impeachable due to the “corrupt” or “mixed” nature of that political actor’s subjective motives. A couple of hypothetical examples should suffice.
In our first hypothetical, a president running for re-election has become particularly interested in prosecuting and deporting Nazis — not “alt-right” dolts, but actual, living Nazis. This is something that still happens in America today. In our hypothetical, the president who has suddenly deemed the prosecution and deportation of Nazis a compelling national interest is fighting hard to win Florida, where he is polling neck-and-neck with his rival. He is set to campaign next week in Florida, and is hoping to make inroads with Florida’s large Jewish community. At the same time, it turns out that the particular high-profile Nazi the president wants to prosecute and deport is elusive, but a certain European country — let’s call it Ukraine — has highly pertinent information about that Nazi’s whereabouts. Is it modern Democrats’ contention that the president cannot here delay foreign aid disbursement to Ukraine and only release the aid on the condition that Ukraine pledges to assist the president hunt down the specific Nazi of his ire?
In our simpler second hypothetical, the facts on the ground are the precise same as they are in real life, but for one tiny difference: Joe Biden is not seeking the 2020 Democratic Party presidential nomination. Is it really modern Democrats’ contention that Biden’s mere presence in the 2020 Democratic field (1) outright immunizes him and his son from public scrutiny about past activities, (2) ties the president’s hands with respect to ferreting out corruption in Ukraine, and (3) turns constitutionally protected free speech into activity so nefarious so as to be impeachable?
The Democrats’ theory of impeachment is implausible. Worse, it would set an exceedingly dangerous precedent for future partisan impeachments. In our messy system of American politics, there is no such thing as a fine line distinguishing the personal from the national. A political actor, while engaging in constitutionally permissible conduct, is fully within his right to pursue a policy that he simultaneously believes to be in both the national and his personal interest.