WASHINGTON ― The president of the United States can essentially do whatever he wants to get himself reelected if he believes that his own reelection would be in the public interest, a lawyer for President Donald Trump argued on Wednesday in a sweeping claim of executive power.
“Every public official that I know believes that his election is in the public interest,” Alan Dershowitz, one of the president’s attorneys, said on the Senate floor during Trump’s impeachment trial. “If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”
It was an extremist view of executive power ― instead of arguing Trump shouldn’t be removed from office because he didn’t do what witnesses and Democrats have accused him of, Dershowitz was arguing that he shouldn’t be removed because he has the right to do basically anything he likes, as long as it doesn’t violate a specific criminal statute. He’s the president, so no one can stop him.
Dershowitz has argued that presidents can only be impeached for direct violations of the law. He’s argued that Trump’s pressure campaign to get the Ukrainian government to publicly announce an investigation into former Vice President Joe Biden, Trump’s political rival, doesn’t warrant impeachment. On Wednesday, as members of the Senate sitting in Trump’s impeachment trial questioned the House managers and Trump’s defense attorneys on issues of fact and law, Dershowitz argued that the president had broad leeway to engage in conduct he thought might benefit his reelection and the national interest.
“All quid pros are not the same. Some are legitimate and some are corrupt, and you don’t need to be a mind reader to figure out which is which.”
The view extends from the attitude of Trump himself, who has said he has “the right to do whatever I want as president.” If he can get enough of the U.S. Senate to agree to acquit him, he may be proven right.
Rep. Adam Schiff (D-Calif.), the lead House impeachment manager, pushed back on Dershowitz’s argument, saying that the founders didn’t write that the president could commit whatever high crimes and misdemeanors he wanted in his first term if it was in the interest of his reelection. He proposed a hypothetical situation in which the president withheld aid to a state in order to get a state attorney general to announce an investigation into a political rival.
“If you say you can’t hold a president accountable in an election year where they’re trying to cheat in that election, then you are giving them carte blanche,” Schiff said. “All quid pros are not the same. Some are legitimate and some are corrupt, and you don’t need to be a mind reader to figure out which is which.”
“For one thing, you can ask John Bolton,” he added.
The questions came the same day that the White House threatened Bolton, Trump’s former national security adviser, over the planned publication of his book, claiming it contains “significant amounts of classified information.”
Bolton’s unpublished manuscript reportedly confirms Democrats’ core allegation: that Trump withheld military assistance from Ukraine in order to coerce that country into announcing a bogus investigation into Joe Biden, the top-polling Democrat running to unseat Trump. News of the Bolton book is hanging over the trial and a highly anticipated vote on whether to subpoena witnesses. Bolton has already said he would testify if he receives a Senate subpoena.
“There’s no way to have a fair trial without witnesses,” Schiff said Wednesday. “To turn him away, to look the other way, I think is deeply at odds with being an impartial juror.”
“If you have any question about it at all, you need to hear from his national security adviser. Don’t wait for the book. Don’t wait until March 17 when it is in black and white to find out the answer to your question,” Schiff said. “If you have any question about it, you can erase all doubt.”
Three Republicans who seemed open to hearing from witnesses signed onto the first question of the day, which suggested they believed Trump might have had mixed motives in withholding aid to Ukraine. Susan Collins (R-Maine), on behalf of herself, Lisa Murkowski (R-Alaska) and Mitt Romney (R-Utah) asked Trump’s lawyers how the Senate should respond if they believe Trump had more than one motive in withholding the military aid.
Patrick Philbin, deputy White House counsel, argued that House managers had to argue that there was no possible public interest at all in an investigation into Joe Biden and his son Hunter.
“Once you’re into mixed motive land, it’s clear that their case fails. There can’t possibly be an impeachable offense at all,” Philbin said. “Think about it: All elected officials, to some extent, have in mind how their conduct, how their decisions, their policy decisions, will affect the next election. There’s always some personal interest in the electoral outcome of policy decisions, and there’s nothing wrong with that.”
In a presentation on Monday evening, Dershowitz argued that Democrats’ case is fatally flawed because their two impeachment articles ― for abuse of power and obstruction of Congress ― don’t cite specific criminal actions by the president.
He also said that even if Bolton’s allegations are true that the president explicitly told him he was essentially extorting Ukraine ― it wouldn’t matter, because “quid pro quo” arrangements are essential to foreign policy.
“He knows better.”
Several Republicans have embraced the argument that it doesn’t matter if the president engaged in a quid pro quo ― something the president has forcefully denied for months, even though he has admitted he wanted Ukraine to investigate Joe Biden.
“Quid pro quo doesn’t matter,” Sen. Ted Cruz (R-Texas) said during an interview with Fox News’ Sean Hannity on Tuesday.
On Wednesday, before the proceedings started, Dershowitz told reporters that he’d received kudos for his Monday argument.
“A number of the senators, as I was waiting for the elevator, just congratulated me on a good presentation, said I had changed some views,” Dershowitz said.
Democrats strongly disagreed with Dershowitz’s assertions.
“He knows better,” Sen. Patrick Leahy (D-Vt.) said Wednesday after Dershowitz made his arguments about the public interest. “He also said that ... the framers wanted us to have indictable crimes for an impeachment. Of course there were no indictable crimes at the time that they wrote that.”
Sen. Chris Coons (D-Del.) said that Dershowitz’s remarks were “pretty striking” and “disconcerting.” Sen. Amy Klobuchar (D-Minn.) told HuffPost she plans to ask a question about the Trump team’s claim of “absolute immunity.” She said the president’s lawyers “are playing a game of whack-a-mole,” with the Justice Department saying the president can’t be indicted and the president’s impeachment lawyers arguing he can only be impeached for indictable conduct. She said Dershowitz’s arguments were “not consistent with what even he has said in the past.”
Sen. Kirsten Gillibrand (D-N.Y.) called Dershowitz’s argument “beyond absurd.”
“I thought he made absolutely no sense because he essentially said that if President Trump believes his election is good for the American people, he can do whatever he wants.”
Igor Bobic contributed reporting.