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.