Warm Southern Breeze

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Dershowitz: Trump’s violation of law doesn’t apply because he is trying to get re-elected.

Posted by Warm Southern Breeze on Wednesday, January 29, 2020

Alan Dershowitz Argues Presidential Quid Pro Quos Aimed At Reelection Are Not Impeachable

When I read the headline, I LITERALLY laughed out loud.

Yet, it would sad, if it weren’t so funny.

Alan Dershowitz, a once-respected attorney, retired Harvard Law School professor, and member of Trump’s legal team in his Senate trial for Impeachment, has recently argued that Trump did not violate law when he withheld Ukraine money, and asked Ukrainian President Vladimir Zelensky saying “I would like you to do us a favor, though” in the now-infamous July 25th phone call, because… he is trying to get re-elected.

That, of course, comes after the General Accountability Office wrote in their report that, “we conclude that OMB violated the ICA.”

The preposterous absurdity of that argument is blatantly evident. In other words, the POTUS can do anything illegal to get re-elected.

New York Magazine published a story with exactly such a headline:
Dershowitz: President Can Abuse Power If It Helps Get Them Reelected

Using that argument, one could claim that killing the president is justifiable to save the country.

It seems that Dershowitz has lost his legal mind, and his Alzehimer’s is showing.

Let’s examine the transcript from the trial.

C.J. ROBERTS: Thank you. Senator Cruz?

CRUZ: Mr. Chief Justice, I sent a question to the desk.

C.J. ROBERTS: Thank you. The question is address to counsel for the President. As a matter of law, does it matter if there was a quid pro quo? Is it true that quid pro quo’s are often used in foreign policy?

DERSHOWITZ: Chief Justice, thank you very much for your question. Yesterday I had the privilege of attending the rolling out of a peace plan by the President of the United States regarding the Israel/Palestine conflict and I offered you a hypothetical the other day.

What if a Democratic President were to be elected and Congress were to authorize much money to either Israel or Palestinians and the Democratic President were to say to Israel, no I’m going to withhold this money unless you stop all settlement growth or to the Palestinians, I will withhold the money Congress authorized to you unless you stopped paying terrorist and the President said, quid pro quo. If you don’t do it you don’t get the money. If you do it you get the money.

There’s no one in this chamber that would regard that as in any way unlawful. The only thing that would make a quid pro quo unlawful is if the quo were, in some way, illegal. Now we talked about motive. There are three possible motives that a political figure can have.

One, a motive in the public interest and the Israel argument would be in the public interest. The second is in his own politic interest and the third, which hasn’t been mentioned would be in his own financial interest – his own pure financial interest just putting money in the bank.

I want to focus on the second one for just one moment. Every public official that I know believes that his election is in the public interest and mostly you’re right. Your election is in the public interest and if a President does something which he believes will help him get elected in the public interest that can not be the kind of quid pro quo that results in impeachment.

I quoted President Lincoln. When President Lincoln told General Sherman to let the troops go to Indiana so that they can vote for the Republican party. Let’s assume the President was running at that point and it was his electoral interest to have these soldiers put at risk – the lives of many, many other soldiers who would be left without their company.

Would that be an unlawful quid pro quo? No because the President, A, believed it was in the national interest but B, he believed that his own election was essential to victory in the Civil War, every President believes that. That’s why its so dangerous to try to cycle analyze a President to get into the intricacies of the human mind. Everybody has mixed motives and for there to be a constitutional impeachment based on mixed motives would permit almost any President to be impeached. How many Presidents have made foreign policy decisions after checking with their politic advisors and their pollsters. If you’re just acting in the national interest why do you need pollsters? Why do you need political advisors? Just do what’s best for the country but if you want to balance what’s in the public interest with what’s in your parties electoral interest and your own electoral interest it’s impossible to discern how much weight is given to one to the other.

[14:15:00]

Now we may argue that it’s not in the national interest for a particular President to get reelected over a particular Senator or member of Congress and maybe we’re right. It’s not in the national interest for everybody who’s running to be elected but for it to be impeachable you would have to discern that he or she made a decision solely on the basis of, as the House managers put it, corrupt motives. And it cannot be a corrupt motive if you have a mixed motive that partially involves the national interest, partially involves electoral and does not involve personal, pecuniary interests.

And the House managers do not allege that this decision, this quid pro quo, as they call it, and the question is based on the hypothesis there was a quid pro quo, I’m not (inaudible) the facts, they never allege that it was based on pure financial reasons. It would be a much harder case if a hypothetical President of the United States said to a hypothetical leader of a foreign country “unless you build a hotel with my name on it and unless you give me $1 million kickback, I will withhold the funds.”

That’s an easy case. That’s purely corrupt and in the purely private interest. But a complex middle case is “I want to be elected, I think I’m a great President, I think I’m the greatest president there ever was and if I’m not elected, the national interest will suffer greatly.” That cannot be an impeachable offense. Thank you, Mr. Chief Justice.

C.J. ROBERTS: Recognize the Democratic Leader.

SCHUMER: Mr. Chief Justice, I send a question to the desk.

C.J. ROBERTS: The question is for the House managers. “Would you please respond to the answer that was just given by the President’s counsel?”

SCHIFF: I would be delighted.

(LAUGHTER)

There are two arguments that Professor Dershowitz makes. One of – it is – I have to say a very odd argument for a criminal defense lawyer to make and that is it is highly unusual to have a discussion in trial about the defendant’s state of mind, intent or mens rea.

In every courtroom in America, in every criminal case or almost every criminal case except for a very small sliver that are strict liability, the question of the defendant’s intent and state of mind is always an issue. So this is nothing novel here, you don’t require a mind reader. In every criminal case and I would assume in every impeachment case, yes, you have to show that the President was operating from a corrupt motive, and we have.

But he also makes an argument that all quid pro quos are the same and all are perfectly copacetic. Now some of you said earlier “well if they could prove a quid pro quo over the military aid, now that would be something.” Well, we have.

So now the argument shifts to all quid pro quos are just fine, they’re all the same. Well I’m going to apply Professor Dershowitz’s own test – he talked about the step test, John Rawls, the philosopher. Let’s put the shoe on the other foot and see how that changes our perception of things.

But I want to merge that argument with one of the other presidential counsel’s argument when they – when they resorted to the whataboutism about Barack Obama’s open mic. Now, that was a very poor analogy, I think you’ll agree, but let’s use that analogy and let’s make it more comparable to today and see how you feel about this scenario.

President Obama, on an open mic, says to Medvedev “Hey, Medvedev, I know you don’t want me to send this military money to Ukraine cause they’re fighting and killing your people. I want you to do me a favor, though. I want you to do an investigation of Mitt Romney and I want you to announce you found dirt on Mitt Romney. And if you’re willing to do that, quid pro quo, I won’t give Ukraine the money they need to fight you on the front line.”

Do any of us have any question that Barack Obama would be impeached for that kind of misconduct? Are we really ready to say that that would be OK, if Barack Obama asked Medvedev to investigate his opponents and would withhold money from an ally that it needed to defend itself to get an investigation of Mitt Romney? That’s – that’s the parallel here.

And to say “well, yes, we condition aid all the time,” for legitimate reasons, yes – for legitimate reasons, you might say to a governor of a state “hey, governor of a state, you should chip in more towards your own disaster relief.”

[14:20:00]

But if the President’s real motive in depriving a state of disaster relief is because that governor won’t get his Attorney General to investigate the President’s political rival? Are we ready to say that the President can sacrifice the interests of the people of that state, or in the case of Medvedev, the people of our country, because all quid pro quos are fine, it’s carte blanche?

Is that really what we’re prepared to say with respect to this President’s conduct or the next? Because if we are, then the next President of the United States can ask for an – an investigation of you. They can ask for help in their next election from any foreign power. And the argument will be made “nope, Donald Trump was acquitted for doing exactly the same thing. Therefore, it must not be impeachable.” Now, bear in mind that efforts to cheat an election are always going to be in proximity to an election and 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.

So 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.

C.J. ROBERTS: Thank you, Mr. Manager.

At Trump’s Senate trial, House Manager Representative Adam 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.”

Dershowitz said, “Every public official that I know believes that his election is in the public interest. And mostly you’re right. Your election is in the public interest. And if a president did something that he believes will help him get elected, in the public interest, that cannot be the kind of quid pro quo that results in impeachment.

“If you’re just acting in the national interest, why do you need pollsters? We may argue that it’s not in the national interest for a particular president to get elected, and maybe we’re right, but in order for it to be impeachable, one would have to prove that the decision was based solely on ‘corrupt motives.'”

“A complex middle case is ‘I want to be elected. I think I’m a great president. I think I’m the greatest president there ever was and if I’m not elected, the national interest will suffer greatly.’ That cannot be an impeachable offense.”

To anyone with a reasonably sound mind, the absurdity of Dershowitz’ argument is plainly evident.

Carrie Cordero, whom is the Robert M. Gates Senior Fellow and General Counsel at the Center for a New American Security, is an Adjunct Professor of Law at Georgetown University Law Center, Contributing Editor of Lawfare, and CNN Legal Analyst, said of Dershowitz’ argument that, “From a national security perspective, it’s nonsensical. From a constitutional argument that it’s not — that that would make something not impeachable, it’s nonsensical.”

Ultimately, she said it “invites and opens the door to anything that is in the realm of foreign influence.”

A mere four years ago, in 2016, on the Trending Today USA radio show, Dershowitz was asked about The Clinton Foundation, and said, “When you compare that to what Trump has done with Trump University, with so many other things, I think there’s no comparison between who has engaged in more corruption and who is more likely to continue that if elected President of the United States. So I think what we’re doing is we’re comparing, we’re saying, look, neither candidate is anywhere close to perfect, let’s vote for the less bad candidate.”

At the time, Dershowitz was a vocal supporter of Hillary Clinton for president.

That same year, on The Jamie Weinstein Show, Dershowitz said, “I think he’s a canny politician and he knows he can’t win this election without the alt right – without getting people to vote for him, whose views he disapproves of. But he hasn’t had the courage to really stand up to the alt right in the way he should. There is a kind of fascist mentality in the world today. I don’t worry that Donald Trump will try to govern that way. I do worry that he will embolden and strengthen some of the fascist elements in our society.”

In September 6, 2016, in his book “Electile Dysfunction: A Guide for Unaroused Voters,” he wrote of Trump that,

“It may seem strange that the most successful populist candidate in modern history is a New York City multimillionaire who started his career as a landlord and who made his fortune on upscale real estate; has become famous for firing people; has exploited bankruptcy laws to hurt small-business owners, workers, and other creditors; has insulted large groups of people comprising a majority of voters (women, Latinos, the physically challenged, Muslims); has used vulgar words on TV that offend Christians, parents of young children, and family-oriented people of all backgrounds.

“What is clear is that Trump is prepared to violate existing international and domestic laws, as well as widely accepted principles of human rights, in his effort to stop terrorism. Even more disturbingly, Trump has sometimes lurched into the realm of dog-whistle anti-Semitism by half-heartedly courting the support of white-nationalist bigots.”

In December 2007, New York Magazine reported that Dershowitz was part of Epstein’s legal team after police had begun investigating the billionaire after Epstein’s victims had gone to police, and was helping him pursue an aggressive counter-investigation against his accusers.

In part, the story stated that,

“Dershowitz, the Harvard law professor, provided the police and the state attorney’s office with a dossier on a couple of the victims gleaned from their MySpace sites—showing alcohol and drug use and lewd comments. The police complained that private investigators were harassing the family of the 14-year-old girl before she was to appear before the grand jury in spring 2006. The police said that one girl had called another to say, ‘Those who help [Epstein] will be compensated and those who hurt him will be dealt with.’”

Mr. Dershowitz certainly seems to have changed his tune.

Maybe it was his access to little girls in Jeffrey Epstein’s lair that helped.

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