Trump lawyer Dershowitz argues president can't be impeached for an act he thinks will help his re-election - USA TODAY

William Cummings USA TODAY

Published 10:09 AM EST Jan 30, 2020

Attorney Alan Dershowitz, a member of President Donald Trump's defense team, alarmed Democrats and many legal scholars with his argument in the first day of questions and answers in the Senate impeachment trial that presidents cannot be removed from office for an action they believe could help get them re-elected.

In response to a question from Sen. Ted Cruz, R-Texas, about whether it mattered if Trump engaged in a "quid pro quo," Dershowitz said that motive was what mattered and that if an act was in the public interest it was not impeachable. And he said it was reasonable for a public official to equate what is in their own political interest with the public good.

"Every public official that I know believes that his election is in the public interest," he said. "And 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."

Dershowitz said a quid pro quo that involved an illegal act, or was done for personal financial gain, would be impeachable, however.

Amid a flood of criticism on social media and cable news, the high-profile attorney and law professor said his answer was being "willfully distorted."

"They characterized my argument as if I had said that if a president believes that his re-election was in the national interest, he can do anything. I said nothing like that, as anyone who actually heard what I said can attest," he said in a tweet.

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Trump is facing two articles of impeachment, one for abuse of power and one for obstruction of Congress, stemming for allegations he leveraged military aid in a "quid pro quo" – a Latin phrase for a deal in which something is given and received –with Ukraine for assistance with politically motivated investigations.

Dershowitz went on to say it was "dangerous" to base an impeachment on assumptions about what a president was thinking when he or she made a controversial decision because "everybody has mixed motives."

"A constitutional impeachment based on mixed motives would permit almost any president to be impeached," he argued. "How many presidents have made foreign policy decisions after checking with their political advisers and their pollsters?"

Lead House impeachment manager Rep. Adam Schiff, D-Calif., said it was a "very odd argument for a criminal defense lawyer to make" because motive plays a role in almost every criminal case.

Schiff said Dershowitz's logic would give a president "carte blanche" to cheat in an election.

"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," Schiff said.

On Twitter, Harvard Law professor Laurence Tribe, a longtime critic of both Trump and Dershowitz, compared the argument to French King Louis XIV's declaration, "L'état, c'est moi," meaning, "I am the state."

"Accepting this argument would put us on a short path toward dictatorship, benevolent or otherwise. It’s incompatible with the government of, by, and for the people. It’s government by egomania," Tribe said.

University of Michigan law professor Barbara McQuade called Dershowitz's logic "absurd" and said, "If the Senate is to maintain any semblance of a check on presidential abuse, surely it must reject this argument."

Former White House counsel John Dean said that by Dershowitz's logic former President Richard Nixon would not have been subject to impeachment for the Watergate break-in. But Dershowitz, who has argued impeachment requires a criminal act, did say "the only thing that would make a quid pro quo unlawful is if the quo were, in some way, illegal."

"Alan Dershowitz unimpeached Richard Nixon today. All Nixon was doing was obstructing justice and abusing power because he thought he was the best person for the USA to be POTUS," Dean said in a tweet.

Sen. Tammy Duckworth, D-Ill., told MSNBC Dershowitz's claim "sounds like something coming out of North Korea, not Pennsylvania Avenue."

"Dear @CongressEthics: Can I have my staff pressure a foreign government to help my re-election campaign because it’s in the public interest that I get re-elected? Just kidding," quipped Rep, Ted Lieu, D-Calif. "Unlike @realDonaldTrump & crazy @AlanDersh, I follow federal law."

Rep. Andy Biggs, R-Ariz., defended Dershowitz and said the "the left," and some members of the news media, "blatantly misconstrue" his argument.

"He's never argued that the POTUS has absolute immunity," Biggs said in a tweet. "He's challenging the amorphous charge of Abuse of Power. Huge difference."

The second of the two days scheduled for questions and answers in the Senate impeachment trial opens Thursday afternoon.

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