Friday, January 31, 2020

Dershowitz's "L'état c'est Trump" is not as crazy as it sounds, but it doesn't benefit Trump

by Michael C. Dorf

On Wednesday, Alan Dershowitz told the US Senate that President Trump's conditioning of the release of congressionally appropriated aid to Ukraine on the announcement of an investigation into Hunter and Joe Biden was not impeachable conduct, even assuming such a quid pro quo were proven beyond a reasonable doubt. Why not? According to Prof Dershowitz, "every public official . . . believes that his election is in the public interest. [Thus,] 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."

That contention was derided by Congressional Democrats and much of the media, including Susan Glasser, whose New Yorker article was aptly titled "L’ÉTAT, C’EST TRUMP." For his part, Prof. Dershowitz insisted that critics who charged that under his approach a president could have his political rivals assassinated without committing an impeachable offense had misunderstood or deliberately mischaracterized him. Social media chaos ensued, with critics charging that Prof Dershowitz had indeed said that the President is above the law and was trying to walk it back.

I'm not at all interested in whether Prof Dershowitz changed his tune. Rather, I want to analyze the most plausible version of his claim. It appears in a series of tweets. The key one states: "A good motive does not justify criminal behavior. But a mixed motive should not turn perfectly legal conduct into an impeachable crime, as the [House] Manager[s’] theory would." That contention is not crazy. The problem is it has almost nothing to do with Trump's conduct.

Every president considers the political consequences of his policy positions. We hope that presidents will sometimes act as statesmen (or in the future stateswomen) and sign legislation or undertake executive action that is in the public interest even though unpopular, but we cannot reasonably expect every president to do that all the time.

Suppose a bill contains provisions the president thinks are not in the public interest. Suppose further that the president could veto the bill, have the veto sustained, and then Congress would pass a substitute without the offending provision. But suppose finally that vetoing the bill would be politically costly. Perhaps the offending provision is a subsidy for some politically important but socially damaging constituency (like the coal industry). Now we apply the Dershowitz maxim. Congress surely can't impeach the president for taking an otherwise lawful step--here signing legislation--for a political motive.

That seems right. Given the ubiquity of political motives, every president would be committing multiple impeachable acts on a routine basis were the Dershowitz maxim false. So far so good.

But notice that the conclusion that a political motive does not render an otherwise permissible act impermissible does not in any way depend on the further contention by Professor Dershowitz that elected officials believe themselves to be serving the public interest. In my hypothetical two paragraphs up, that further contention would add a rationalization for the president that goes like this: I'd prefer not to capitulate to the coal industry this way, but I need their support because if I alienate them, they'll support my opponent in the next election, and then I'll lose, and the country will be worse off because I'm better at managing the economy, pursuing US interests throughout the world, and even protecting the environment (notwithstanding my sellout on coal), so it's in the public interest that I get re-elected.

Such a rationalization adds nothing. If it is permissible for a president to sign a piece of legislation or take some other act that is not otherwise wrongful even though the motive is political in the sense I've described, then the fact that the president believes he better serves the national interest than would a political rival is not necessary. And if the president's conduct is otherwise impermissible--authorizing an illegal break-in into a political rival's HQ, say, and then covering it up--the fact that it is done for the purpose of aiding a president who believes the country is better off with him in office will not render the conduct innocent.

And Prof Dershowitz's tweet seems to recognize as much. His problem is thus somewhat of his own making. He ought not to have said that public officials believe their re-election is in the public interest. He ought to have said simply what he tweeted--that "a mixed motive should not turn perfectly legal conduct into an impeachable crime."

Actually, even that's not quite what Prof Dershowitz ought to have tweeted. He has said that impeachment is only available for crimes and "crime-like" conduct. I think that's way too narrow. Charles Black's classic book on impeachment gives various examples of egregious presidential conduct that is not remotely "crime-like" but that nonetheless is impeachable under well-established traditions. But let's assume for the sake of argument that Dershowitz's additional limitation is appropriate; to be impeachable, conduct must be criminal or "crime-like." If so, then what Prof. Dershowitz ought to have said was that "a mixed motive should not turn perfectly legal conduct or conduct that is not sufficiently crime-like to be impeachable into an impeachable crime."

Yet granting all of that, his statement is not a good defense of Trump. Remember that the Dershowitz portion of the Trump defense argument is a kind of motion to dismiss: He says that even if what the House managers say is true, Trump cannot be removed because the allegations do not amount to impeachable conduct. Yet the House managers do not say that Trump acted with mixed motives that render otherwise innocent conduct impeachable, at least not in the way that the Dershowitz tweets imply.

There is an enormous difference between acting with a political motive in the sense that one supports a policy because it will be popular even though one thinks it might not be in the public interest--which is inevitable in a representative government--and acting with a political motive in the crass and dangerous sense that one uses the machinery of state for purely political ends. Trump stands accused of the latter.

Can the government ever investigate people who happen to be political rivals of the president? Of course. If officials in the State and/or Justice Department come to the president and tell him that ongoing corruption investigations in cooperation with the government of a foreign power have focused on a political rival, one would expect a normal president to say something like the following: "I have a conflict of interest here, so I'll recuse myself from whatever role I might play in a case like this involving someone else. Other than that recusal, handle it the way you would with anyone else."

Failure to recuse under such circumstances might not be impeachable conduct, but it would be highly irregular. As evidence, consider the conniptions that Trump supporters had when Bill Clinton had a single conversation with Attorney General Loretta Lynch at the Phoenix airport in June 2016. The meeting gave at least the appearance of impropriety. Why? Because using political influence to shield one's political allies from prosecution is problematic. And of course, so is using political influence to prosecute one's political rivals.

But it gets worse for Trump, because the Articles of Impeachment do not say that he simply failed to recuse himself from an otherwise proper investigation into the Bidens. They say he abused the tools of state power to induce a dependent foreign country to announce such an investigation for the primary if not exclusive purpose of benefiting himself politically. There's no "otherwise perfectly legal" and non-crime-like course of conduct there. Or if there is, then Prof. Dershowitz ought to be arguing for that.

Put differently, the entire mixed-motive/politicians-believe-their-re-election-serves-the-public-interest argument is a red herring. Dershowitz's entire argument rests on the premise that withholding congressionally appropriated aid to a country fighting for its survival in order to pressure that country into smearing a political rival is not "crime-like." Speaking later in the day on Wednesday, Representative Schiff made plain that that claim does not stand up.

So no, what Prof Dershowitz said isn't entirely crazy; it just doesn't have anything to do with Trump's defense.


Jim said...

Yes, the injection of the concept of "mixed motive" was simply another effort by the Republicans to conjure up a silver-bullet "legal-like" argument that would prevent them from having to grapple with Trump's actual conduct. Hey, we use mixed-motive analysis in other areas (e.g., employment discrimination), so why not here? But the analogy doesn't hold up, as Prof. Dorf points out. In the employment context, mixed motive is intended to be plaintiff-friendly, enabling a claim to go forward (at least sometimes) even if the employer acted with a combination of discriminatory and non-discriminatory motives. It certainly doesn't work the way the Republicans suggest -- as a defense against impeachment for a corruptly-motivated act so long as there are (or might be) permissible policy-related or political motivations for this act.

Laura said...

I was physically queasy all day yesterday thinking that the fate of the republic at this moment was in the hands of Alan Dershowitz. Throughout the course of the hearing yesterday, however, Trump’s counsel threw out a dizzying (but arguably intellectually dishonest) array of possible off ramps for Senate Republicans so they wouldn’t necessarily have to acquit Trump based on Dershowitz’s head-exploding theories of what constitutes impeachable conduct. But the most stunning, insidious moment of the day came with the final question posed to defense counsel. The question was whether Biden’s alleged conduct in connection to the withholding of loan guarantees until Shokin was fired, which is based on a dishonest, bad faith mangling of the facts, rises to the level of impeachable conduct under the “Dershowitz standard(s)” and Trump’s conduct does not. Mr Philbin sidled up to the podium and, with astonishing unscrupulousness, proceeded to apply Dershowitz’s test to Biden’s alleged conduct and concluded that, yes, it is impeachable. This slanderous, bad faith response was absolutely unnecessary for the purposes of defending Trump. As a lawyer, I was sickened by Mr. Philbin’s conduct in response to the question, which he could have respectfully, easily sidestepped (say, by focusing only on Trump’s conduct, arguing it was unimpeachable). Following that, the final Democratic question asked the House Managers to respond to defense counsel’s response. You could see Schiff was ready to pounce on it, and he would have given the best response, in my mind. However, Nadler ran to the podium, even as Schiff was audibly calling Nadler by name to step back, but Nadler ignored the call. Once at the podium, all Nadler said was that it was “nonsense.” It’s unfortunate that Nadler did not say more about Philbin’s deplorable conduct and argument. Instead, Philbin’s scurrilous attack on Biden was left unchallenged in any meaningful way, and it will be trotted out by Trump and his allies as a definitive, legitimate disposition of the matter (and made seemingly all the more legitimate, appearance wise, because it was made in the Senate trial by a lawyer and went unchallenged).

Joe said...

The discussion probably gives it more respect than deserved.

"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"

Or whatever Trump is. The rule is an absolute sense is ridiculous w/o qualifier as any number of people noted. The issue is what.

If what gets them elected is bribing the Chief Justice to decide a case, even if it is to enforce the Voting Rights Act (h/t Prof. Leah Litman), it is impeachable. ANYTHING someone does that they think will help them get elected and is somehow a bad idea isn't impeachment. Duh. But, a serious abuse of power to advance this end, even if there is a mixed motive is impeachable.

The whole thing is smoke like when a question suggested the point is that he didn't follow the opinions of career foreign service officials. Schiff right away said "obviously not the point."

tjchiang said...

No, the contention is crazy, at least if taken as an absolute rule. Impure motives turn otherwise perfectly legal conduct into criminal behavior all the time. If Tycoon X gives Politician Y $1000 in campaign contributions, and then Politician Y gives X's company a major defense contract because Politician Y thinks X's company is the best company for the job, then that is absolutely fine. If Politician Y gives X's company the contract because he understood that to be the quid pro quo for the $1000 contribution, that is bribery.

Michael C. Dorf said...

TJ: I agree with your example. I think Dershowitz would say that one must be in an area where either a statute or a crime-like paradigm (whatever that is) provides that corrupt motive makes the otherwise permissible act impermissible. But that's why I conclude that his point is irrelevant here, because the thing Trump is accused of is in that ballpark. To use Schiff's term, it's either bribery or bribery-adjacent.