RUTHFULLY YOURS

It has now been a month since the Senate acquitted U.S. President Donald J. Trump, but the lies persist. Democratic leaders and the media continue to put on trial what they have denominated as “The Dershowitz Doctrine”: namely that a president can do anything — even commit serious crimes — as long as he believes his election was in the public interest. Congressman Adam Schiff described it as a “lawless” variation on the “Nixon” doctrine that whatever a president does is, by definition, lawful. Senator Schumer said that under “my” doctrine, former President Richard M. Nixon did not commit any impeachable offense, despite evidence of his numerous crimes. (Ignoring my explicit statement that I supported Nixon’s impeachment.) Media pundits went even further: Joe Lockhart, former Press Secretary to President Bill Clinton, accused me of making arguments that would justify the genocides of Hitler and Stalin.

What then did I say to warrant such demonization? In response to a question whether it matters “If there were a quid pro quo,” I said that would depend on “If the quo were in some way unlawful.” If the politician’s motive were “corrupt” — for example, if he were seeking a kickback, that would be an impeachable crime. But if his entirely lawful act had “mixed motives,” including his re-election, that would not turn a lawful act into a crime or impeachable offense.

I went on to say that all politicians have mixed motives for their political actions: they act in the public interest with an eye toward their electability. I emphasized that if a politician does something that would otherwise be legal, the fact that he was motivated in part by personal political advantage would not, by itself, turn his legal actions into illegal corruption. Put another way, a self-serving political motive — a desire to be re-elected — is not necessarily a “corrupt” motive. I also said that if the politician sought anything — a “quo” — that was “in some way illegal,” that would “make a quid pro quo unlawful.”

Indeed, the main thrust of my hour-long opening presentation was that a president could be impeached if he committed crimes or criminal-like behavior akin to treason, bribery or other high crimes and misdemeanors — regardless of his motivation.

I made this self-evident point in response to arguments by the House Managers that mixed motives could turn innocent conduct into a crime, if any part of the motive were corrupt, and that a motive to help one’s own re-election could be corrupt.

I never once suggested that if a politician believed that his reelection was in the public interest, his criminal or impeachable conduct could somehow be excused. Both the Wall Street Journal and The New York Times got it right. The Wall Street Journal said the following:

“Start with the media claim that defense lawyer Alan Dershowitz said a President can do anything to further his re-election as long as he thinks it is in the national interest. This isn’t what he said. The Harvard professor said explicitly that a President can be impeached for criminal acts.”

The New York Times reported on my position as follows:

“Some Democratic senators and other critics accused him of suggesting that even Nixon was not impeachable, despite his clear crimes. But that accusation is incompatible with Mr. Dershowitz’s main argument: that an impeachable ‘high crime and misdemeanor’ requires an indictable offense.”

These accurate descriptions bear no relationship to the distorted mischaracterization by Democratic politicians, media pundits and anti-Trump academics, who should know better.

Why then the deliberate distortions? Because my actual arguments resonated with some senators. How do I know? Because some have said so publicly, while others have said so privately. Senator Ted Cruz has written that “[Dershowitz’s] learned insight played a critical role convincing senators.” Senator James Inhofe said: “I agree with Alan Dershowitz – a liberal Democrat – who explained so well that more witnesses won’t change the fact that President Trump did not commit a crime or an impeachable offense.” When I was arguing that all politicians have mixed motives and that it would be dangerous to deem corrupt a motive to be re-elected, I could see the reaction of senators in the room.

Perhaps the most disturbing consequence of distorting the so-called “Dershowitz doctrine” into a justification for any and all presidential actions, is that it may create a dangerous precedent. Because of the persistent mischaracterization of the “Dershowitz doctrine,” the Senate vote to acquit may be taken as a confirmation that a president who believes his re-election is in the public interest, can do anything he wants — even commit serious crimes — to help himself get re-elected. That is not what I said or believe. Nor is it the precedent the senators who vote for acquittal intended to establish.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of the book, Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo, Skyhorse Publishing, November 2019. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute.