Thursday, February 06, 2020

On the Value of Seeing the True Colors of Senate Republicans, and a Comment on Dershowitz's Bizarrely Post-Modern Non-Argument

Note to ReadersDorf on Law was founded and has been providing daily commentary since 2006.  We have always appreciated the high quality of our readers' comments as well as the rarity of any outbreaks of acrimony among commenters.  One reason for this truly unusual and happy state of affairs -- in a format that, based on what one can see at virtually every other blog, seems to bring out the worst in commenters -- is that the regular commenters on this blog have consistently set such a nice tone.  Professor Dorf and I have met only one or two of those commenters in person, but we still feel that we have come to know a few of those whom we have not met as friendly correspondents.

Sadly, we received news last week that one of our most diligent and delightful commenters (who was particularly good at pointedly engaging with the occasional troll, without escalating into nastiness), who went by the online handle Shag from Brookline, passed away this past November at the age of 89.  Shag would often comment on his age (in a light-hearted way), so when he stopped showing up on the comments board a few months ago, we suspected that his time on earth had come to an end.  His hometown newspaper, the Brookline TAB, wrote a short obituary that noted that Shag (whose in-real-life name was Arshag "Archie" Mazmanian) was a community leader, a lawyer, and a "longtime Brookline TAB letter writer."  So we at Dorf on Law were not the only ones to benefit from Shag's active pen!

We miss Shag from Brookline, and we are confident that he rests in peace.

by Neil H. Buchanan

The Senate's sham trial of the charges of Abuse of Power and Obstruction of Congress has resulted in the expected Republican whitewash (with Mitt Romney the lone outstanding and honorable exception) of Donald Trump's high crimes and misdemeanors.

Although there is now some chatter that the Democrats should not have brought a case to a tribunal that was known to be in the tank for the defendant, I continue to believe that it would have been even worse to have done nothing after we learned of Trump's "drug deal" to get a financially-dependent and militarily threatened ally to participate in a political hit job aimed at Joe Biden.

In response to those who point out (correctly) that Trump now feels free to do anything, one can only imagine what he would have thought had there been no response at all.  At least he was tied up with all of this for a few months, and although some Republican rationalizers are wrong to think that impeachment will "chasten" Trump or make him hesitate to do worse, there are still constitutional (to say nothing of political) benefits to impeaching a president when he commits impeachable acts.

Perhaps the most important reason to pursue impeachment was to put Senate Republicans in exactly the position that they are now in.  Prior to this month, one could speculate -- with a great deal of certainty, but still only speculate -- that Republicans would do nothing to stop Trump.  Even though the reality of their spinelessness is horrifying, at least we can see with startling clarity that there is no bottom for them.  Now we know.

In my new Verdict column today, I note that even the most supine of Republicans could have done something to pretend to take seriously the possibility that Trump will feel unleashed.  Along the way, I argue that Trump and the Republicans might actually have been better off if they had taken a semi-principled position and voted to convict and remove Trump from office, but then to "let the people decide" by not voting to disqualify him from holding office in the future.  (My discussion there was partly inspired by readers' comments on some recent DoL columns, by the way.)

But of course, that was not going to happen, so I go on to suggest that Republicans could have voted for a "Sense of the Senate" resolution that essentially described this week's acquittal as a one-ride-only ticket for Trump.  Although I do not make the analogy in the Verdict column, this is somewhat like the infamous language in the controlling opinion of Bush v. Gore, where the Court's five conservatives said that "[o]ur consideration is limited to the present circumstances."  The Court was saying there that no one in the future should count on being the beneficiary of similarly bad reasoning, and Senate Republicans could have said that they will be made of sterner stuff the next time Trump goes wild.

In other words, if the Republicans were truly worried about Trump feeling unchained, they could at least have announced loudly that any future transgressions would not be swept under the rug.  You've been warned!  Of course, just like parents who issue empty warnings to their children, one could reasonably doubt whether Senate Republicans actually would be willing to do what they threatened to do, but what would be the harm in taking that kind of stand now?

Again, we do know now -- if nothing else -- that Republicans' lack of patriotism exceeds even our worst suspicions.  What we could not have anticipated was just how insane Trump's legal team would be in presenting his defense.  Perhaps inevitably, the most operatically unprincipled comments came from Alan Dershowitz.  I cannot allow the moment to pass without at least commenting briefly on what quickly became known as Dershowitz's "L'etat c'est Trump" defense.

In what might become the most remembered moment of the entire sham trial, Dershowitz claimed (I dare not degrade the word "argued") that "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."

Professor Dorf has explained that there is a way to interpret Dershowitz's argument that makes it less crazy, but: (1) that interpretation makes the whole "what Trump truly believes" notion simply irrelevant, and (2) the resulting argument, while at least not laughable, still does not help Trump.

That is a characteristically cogent and intellectually generous argument from Professor Dorf, who went to pains to give the maximum benefit of the doubt to even the most odious claim from even the most disingenuous advocate.  I am not feeling similarly generous, however, and I do think it important to note that neither Trump nor his Republican defenders hesitated for even a moment to embrace the most extreme, dictatorship-friendly interpretation of Dershowitz's remarks.

What makes this non-argument so empty is not merely that it makes it necessary to know what is in the heart of a wrongdoer (assuming he has one), but also that it adopts a notion of moral relativity that is the real-world version of conservatives' disingenuous critique of post-modernism.  That critique charges liberals with believing that all morals are relative, and thus that there is no truth or right.  I am not generally inclined to defend post-modernism, but surely the right's caricature of it is at best a gross exaggeration.

When I was in graduate school, I knew a Harvard undergraduate who naively adopted a fully subjective idea of morality.  In frustration, her classmates resorted to invoking Hitler, asking: "Are you saying the Holocaust was right?"  She responded sweetly: "Well, it was right for Hitler!"

And now we have Dershowitz saying that committing high crimes and misdemeanors is right for Trump, and because Trump apparently believes that what is good for him is good for everyone, those cannot be high crimes and misdemeanors after all.  Once we decide that it is acceptable to exonerate people of wrongdoing if they felt good about doing it, the floodgates are open.

I am reminded of teaching my students in Income Taxation about the tax law as it relates to gifts and to charitable contributions.  Trying to define a gift is (according to Supreme Court precedent) a matter of divining the intent of the giver.  That is devilishly difficult to administer, but fair enough.  The definition of "charitable contribution" refers to "contribution [a circular definition] or gift," making it equally intent-determined.

It is not so much that it is dangerous to make legal outcomes depend on subjective intent -- mens rea is nothing but that, after all -- but that it becomes possible to use Dershowitz-like reasoning to erase the entire category of gift and charity.  All of the now-standard legal definitions -- "detached and disinterested generosity," "affection, respect, admiration, charity, or like impulses," and others -- rely in one sense or another on the lack of personal benefit from giving something away.  Among other things, that is why "personal inurement" is prohibited in charitable giving.

But that is merely supposed to prevent donors from continuing to control the "donation" even after supposedly having given it up to the recipient, or from engaging in a (dare I say it?) quid pro quo, which negates the charitable intent.  It is supposed to be selfless.

At least one student, however, will always object: "But there’s no such thing as selflessness."  Knowing where the discussion will go, I nonetheless gamely respond that one could say that a truly anonymous contribution to a complete stranger would be selfless.  "No, because if you feel happy about having been nice to someone, then your generosity was selfish.  You got something out of it."  "What if it doesn't make me happy?"  "Then you would have had no reason to make the donation, so you wouldn't have made it."

And that is weirdly correct.  If one wants to go down that rabbit hole, it is possible to argue in a Catch-22 sense that no gift is a gift because givers get some kind of a good feeling from doing so.  Yet the law has no trouble saying that such a reductionist view is simply not applicable, and we are able to say that there are ways -- imperfect and not always surrounded by bright lines -- to say what is generous and selfless enough to count.

So also in the context of Dershowitz's argument.  "We can't impeach people who think they're doing good, and all politicians think that their winning is good for everyone, so we cannot impeach any politicians" is too clever by far more than half.  We can and should impeach politicians for cheating the electoral system, because their self-reverence does not make what they are doing any less of an assault on democracy.

We know, of course, that Republicans were going to acquit Trump even without Dershowitz's self-immolation in the well of the Senate.  But he has now put forward the ultimate get-out-of-jail free card for Trump.  My guess is that Trump is in the process of cashing it, right now.


  1. I think there's a variant on Dershowitz's argument that the attorneys were reluctant to make, because it looks bad, although I think indirectly it's the argument they were making.

    The argument is that President Trump is too stupid to be culpable for bribery. In essence, the argument is that Trump really believes that Hunter Biden is guilty of corruption in Ukraine, despite all evidence to the contrary. Similarly, he really believes there is a server hidden somewhere in Ukraine holding evidence on the attack on the 2016 election. In this view, Trump really was just trying to do what he thought was right, and battle corruption in Ukraine. This is the "it isn't perjury if you really believe it," argument.

    As horrible as it is, I think there something to this argument when applied to President Trump.

  2. I do think that the fraudulent non-trial compels universal acknowledgement that DT is supported with unqualified enthusiasm by the full Republican Senate. Any doubt is now erased. Labelling Republicans "spineless" gives them an undeserved pass. No soul-searching occurred.

  3. Greg's and Fred's comments both make a lot of sense, although to Greg's comment, it may be hard to reconcile the implicit stupidity argument with the short-fingered one's claims to being a "stable genius" and the smartest guy in any room he occupies? :)

  4. There is certainly a ring of truth to the stupidity argument, but that doesn't mean his actions are not impeachable. There's no question Trump has seen the mountains of evidence that the Biden/server conspiracy has little to no basis in fact. He just refuses to believe it.

    To me, that sounds less like true stupidity, and more like acting with a reckless disregard of the truth. It would be hard to make a believable case that such a mental state could not support "high crimes and misdemeanors".

  5. Regarding the argument about charitable contributions it seems to me you framed the issue incorrectly. It's just not true (as a fully literal statement) that to qualify as a charitable gift the gift must be given fully selflessly. Maybe sometimes lawyers use those words imprecisely or not fully literally (or maybe not) but if you went and asked a philosopher or linguist to give a fully literal account of the legal rule determining if something counts as a gift they would give an account which discussed the type of compensation, certainty, from who it comes from etc… (charitable donations don't become legally uncharitable just because you believe being seen as charitable will generate more profit than it costs).

    I think you might agree with this but I fail to see what this has to do with Dershowitz's argument at all. His argument simply wouldn't apply because it's false that it's a lack of selfish intent that is necessary for a payment charitable in a legal sense (morally perhaps). Now maybe you want to say that, similarly, it's not really intent that matters in the impeachment case but some other complex and hard to describe judgement but you would need to make that argument. Simply raising an analogy that Dershowitz's argument doesn't apply to if we are careful doesn't lead to the reducto you suggest.

    But perhaps I've misunderstood what you mean to argue.

    *: There are some good psychology/philosophy pieces that argue we have certain sorts of sacred values we see as being degraded by mere material considerations and I think that can shed some light on ultimately what kinds of trades we think allow a payment to be charitable and which render it a purchase (it needs to be the kind of things we see as sacred values…so friendship, social access, dates but not cash, a jet skit etc..)

  6. Trump got his free pass. This is from Rep. Val Demings, a House impeachment manager, a former police chief:

    “The President ordered his subordinates to lie to investigators, intimidated witnesses, and tried to kneecap the investigation at every opportunity. He ordered White House Counsel Don McGahn to fire the special counsel, and then to lie about it and fabricate evidence to hide his action. Don McGahn refused this illegal order, but as Director Mueller clearly stated today, an attempt to obstruct justice is still a crime, even if refused. The Special Counsel documented at least ten counts of obstruction of justice, a federal crime.

    As Schiff noted, right after Mueller testified (spun as a nothingburger by a tired old man, style points used over content), Trump was right back at it. But, the professor's option is a good try, I guess.

    The "he's stupid" argument was offered by at least one senator ("maybe he didn't know you shouldn't do that") and aside from being somewhat besides the point, it's hard to take seriously. [Also, it went against the "perfect" call business to suggest, the horror, Trump was ignorant or something.] We know who Trump is. His actions here, including his corrupt motives, matches his m.o. This was a basic argument of the managers. I guess a bit of that showed up when Alan D. said that as long as Trump thought it was in the public interest, it would be okay.

    (Nixon in his final remarks said just that! He admitted he was wrong but said what he did, he did for what he thought was in the public's interest.]

    I appreciate the preface of this post as well. Multiple people at Balkinization Blog, where he made comments for around 15 years, were quite sorry to hear the news.

  7. Thank you for the kind and thoughtful words about “Shag from Brookline,” aka, Arshag “Archie” Mazmanian. I too enjoyed his comments over the years, both here and elsewhere.

  8. The "he's stupid" argument isn't that he was ignorant of the law (insofar as he actually violated a law) but that he was ignorant in believing that the so-called corruption he pursued was real. Basically, the argument goes like this:

    1.)Trump believes everything said on Fox News, regardless of what anyone else tells him, including professionals within the government. (This is absolutely possible.)
    2.)Somebody on Fox News said that there's Hunter Biden corruption in Ukraine.
    3.)So, the President believes there's Hunter Biden corruption in Ukraine.
    4.)Given the above, it was still inappropriate to take a personal interest in the "legitimate" corruption of a political opponent rather than handing it off to a neutral justice department (which Trump doesn't think is neutral,) but it isn't obvious that it rises to the level of impeachable.

    While you or I would probably consider it a reckless disregard for the truth to believe ANYTHING Fox News says without independent confirmation, I'm not sure many on the right would feel that way.

    This is just the fundamental problem of truth becoming relative in modern times, which many fear is going to be the destruction of our democracy. It's made more clear because the President is guilty of it in a way that many of us didn't believe was possible for someone in that position.

    BTW, hardreaders, claims about being overly smart are usually a sign that someone is too stupid either to know what they don't know, or to know that such claims actually reduce other people's perception of their intelligence. I'm not sure that your client claiming that they are smart (or sane, for that matter) completely forecloses an attorney claiming the opposite in court.

  9. That might be a form of the argument, but I also have seen the argument that he simply didn't know that #4 was inappropriate at all.

    The concern he was misled by FOX News is valid, since the source is particularly dubious, but people in government are going to be pushed to act in various cases by ideological sources at times. This is okay on some level especially if use proper channels. So, e.g., a member of a committee in the House might see something on MSNBC and have their staff investigate.


Note: Only a member of this blog may post a comment.