Self-Involvement and Flimflam

By now, everyone knows this guy:

Alan Morton Dershowitz is an American lawyer and academic. He is a scholar of United States constitutional law and criminal law. He has also been described as a noted civil libertarian. He began his teaching career at Harvard Law School where, in 1967, at the age of 28, he became the youngest full professor of law in its history. He held the Felix Frankfurter professorship there from 1993 until his retirement in December 2013, and has been a regular media contributor, political commentator, and legal analyst.

He’s in demand. He’s articulate and forceful and eccentric, and he likes defending those who seem pretty damned guilty – Claus von Bülow (1984) and O. J. Simpson (1995) and Jeffrey Epstein (2008) and Harvey Weinstein (2018) and now Donald Trump. Give him a day or two and he’ll come up with a startling legal theory no one had ever considered before, because it never existed before. That was his thing. Defense teams, with no possible defense of their particular client, would call him up. For a hefty fee he’d think of something. Their client would walk.

That might be why trump hired him, or it was this:

Following the September 11 attacks in 2001, Dershowitz published an article in The San Francisco Chronicle entitled “Want to Torture? Get a Warrant” in which he advocated the issuance of warrants permitting the torture of terrorism suspects, if there were an “absolute need to obtain immediate information in order to save lives coupled with probable cause that the suspect had such information and is unwilling to reveal it”. He argued that authorities should be permitted to use non-lethal torture in a “ticking time bomb scenario”, and that it would be less destructive to the rule of law to regulate the process than to leave it to the discretion of individual law-enforcement agents. He favors preventing the government from prosecuting the subject of torture based on information revealed during such an interrogation. The “ticking time bomb scenario” is the subject of a play, The Dershowitz Protocol, by Canadian author Robert Fothergill, in which the American government has established a protocol of “intensified interrogation” for terrorist suspects.

William F. Schulz, executive director of the U.S. section of Amnesty International, found Dershowitz’s ticking-bomb scenario unrealistic because, he argued, it would require that “the authorities know that a bomb has been planted somewhere; know it is about to go off; know that the suspect in their custody has the information they need to stop it; know that the suspect will yield that information accurately in a matter of minutes if subjected to torture; and know that there is no other way to obtain it”. James Bamford of The Washington Post described one of the practices mentioned by Dershowitz – the “sterilized needle being shoved under the fingernails” – as “chillingly Nazi-like”.

But then there’s what Andrew Sullivan notes about Donald Trump:

In 2016, a presidential candidate emerged who openly espoused torture as something he would bring back if he were elected. Suddenly, this felt like a legitimate debate. And it was unsurprising that this position won support from Republican primary voters, as if it were just one of many policy proposals, and not an unthinkable violation of domestic and international law. And Trump’s position was not a reluctant one. He exulted in it, telling war crime stories on the stump, in particular the apocryphal one of General Pershing killing Muslims with bullets dipped in the blood of pigs to terrorize others.

Only Jim Mattis was able to restrain the commander-in-chief from restoring the torture program, even if it is clear that Trump still regards war crimes as a sign of strength…

“Torture works!” he declared. In the 2016 campaign, he was asked what he’d do if a military officer refused to obey an illegal order from him, and he responded: “They won’t refuse. They’re not going to refuse, believe me.”

In short, Trump and Dershowitz were made for each other. But torture is not the issue, because this is:

A member of President Donald Trump’s legal team argued on the Senate floor Wednesday that a politician trying to win reelection is acting in the national interest, and therefore a quid pro quo aimed at boosting reelection chances cannot be impeachable.

Alan Dershowitz, a Harvard Law School professor emeritus and high-profile defense attorney, argued that Trump cannot be impeached for pressuring Ukraine for investigations into former Vice President Joe Biden because doing so would be aimed at helping his reelection chances. Dershowitz said Trump’s motivations would ultimately be fueled by the public interest because he believes his reelection is what’s best for the country.

“Every public official that I know believes that his election is in the public interest,” Dershowitz said. “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.”

This was odd, but Dershowitz loves the oddball argument to one ever imaged before. If the president thinks that a certain heinous crime that he can commit will get him reelected, and if the president thinks that getting himself reelected is the best thing in the world for the country, he could never be impeached for committing that particular heinous crime. But this is more mundane than that:

The comments, which came in response to a question about the legality of quid pro quos, could normalize the type of behavior that landed Trump in the middle of the impeachment scandal, and that Democrats say constitutes an improper solicitation of foreign influence in a US election.

Dershowitz shrugged off that nonsense:

“We may argue that it’s not in the national interest for a particular president to get elected,” he said, “and maybe we’re right,” but in order for it to be impeachable, he argued, 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,” Dershowitz concluded.

And that’s that, but Paul Begala, who was a political consultant for Bill Clinton’s presidential campaign in 1992 and served as a counselor to Clinton in the White House, has this to say:

I did not go to Harvard Law, but I did go to the University of Texas School of Law where I studied criminal law and constitutional law, but never dreamed a legendary legal mind would set them both ablaze on the Senate floor.

The Dershowitz Doctrine would make presidents immune from every criminal act, so long as they could plausibly claim they did it to boost their re-election effort. Campaign finance laws: out the window. Bribery statutes: gone. Extortion: no more. This is Donald Trump’s fondest figurative dream: to be able to shoot someone on Fifth Avenue and get away with it.

Allow me to use a technical term – one that I’m pretty sure is in the Magna Carta. This is bonkers. It is ludicrous. Beyond that, it is frightening. The desire of politicians to win elections is overpowering, which is precisely why we need laws to rein them in.

Dershowitz disagrees, but there’s even more to this, as the Washington Post’s Fred Barbash explains here:

On Monday, Dershowitz, the Harvard Law professor emeritus who is part of Trump’s legal team, delivered what quickly became the most favored speech for quoting among GOP senators. It provided them cover, should they need it, for refusing to allow witnesses in the trial of Trump, for voting to acquit him and, in the event damaging evidence emerges after the trial, for slamming it as irrelevant.

Dershowitz argued that to remove a president from office, the Senate must find that he committed an actual crime or “crime-like conduct.” It’s not enough to say, as the current articles of impeachment allege, that a president abused his power or obstructed Congress. “Purely noncriminal conduct including abuse of power and obstruction of Congress are outside the range of impeachable offenses,” Dershowitz said.

He added, “It is inconceivable that the framers would have intended so politically loaded and promiscuously deployed a term as abuse of power to be weaponized as a tool of impeachment.”

So that makes “abuse of power” off limits. No one can use that term. It has no meaning, as everyone agrees, except that they don’t agree:

Dershowitz is one of only a few scholars who accept the theory. Most regard it as absurd, a road map for a vast realm of non-punishable bad behavior by presidents. Dershowitz agreed with them during the impeachment of President Bill Clinton.

But he changed his mind. He likes to surprise everyone. And this was quite useful:

Even if more evidence comes out after the trial of a quid pro quo, Republicans can say it wouldn’t have changed anything.

And it can be used to fend off the possibility of witnesses being called. Should former national security adviser John Bolton say that the deal happened, as he reportedly does in his forthcoming book, “The Room Where It Happened,” it’s still not a crime.

Why waste time listening to Bolton?

“Nothing in the Bolton revelations, even if true, would rise to the level of an abuse of power or an impeachable offense,” Dershowitz said this week.

And that was THE WORD:

That argument proved immediately useful

“Let’s say it’s true, okay?” Sen. Mike Braun (R-Ind.) told reporters Tuesday, referring to the Ukraine quid pro quo. “Dershowitz last night explained that if you’re looking at it from a constitutional point of view,” it is “not something that is impeachable.”

And then there was the rest of the world:

Harvard Law professor Laurence Tribe called it “an extreme and dangerous” theory in an MSNBC interview. “There is no legal scholar in the country other than Dershowitz who believes it,” he said.

Acceptance would “leave a message to future presidents . . . that any way they want to abuse the powers of their office” is just fine, Tribe said, so long as it’s not a statutory crime.

What if “a president required that all cabinet members affirm their belief in the divinity of Christ?” Columbia Law School’s Philip Bobbitt wrote in his new preface to “Impeachment: A Handbook.”

“Or that he devolved to his personal financial adviser classified intelligence about upcoming decisions of the Federal Reserve? Because the president can declassify any material he wishes, there is nothing per se illegal about this.”

So it was the rigor of simple logic versus the lure of the exotic and eccentric, but Elizabeth Holtzman has been here before:

President Trump’s defense lawyer Alan Dershowitz – my professor at Harvard Law School – is flat-out wrong in his assertion that abuse of power is not a basis for impeachment. His position contradicts his own prior views, as well as the views of almost all legal scholars, something that Dershowitz himself admits. Just as important, his assertion flies in the face of the articles of impeachment voted against President Richard M. Nixon by the House Judiciary Committee – of which I was a member – in 1974. These articles did not charge Nixon with a crime, a fact Dershowitz willfully ignores.

She was there. She knows:

Not one of the three articles adopted by the Judiciary Committee mentioned a criminal statute, charged Nixon with violating any criminal statute or described how his conduct met the standards set forth in any criminal statute.

It is not surprising that Dershowitz is trying to sweep the Nixon precedent under the rug. It completely demolishes his argument that a president may be impeached only for a criminal act. But it is wrong for Dershowitz to disregard that precedent and pretend it doesn’t exist, particularly because almost everyone agrees that the work of the Judiciary Committee against Nixon was a kind of gold standard – including Kenneth W. Starr, Dershowitz’s co-counsel in the Trump impeachment proceedings.

And the concepts here are not hard to grasp:

As the committee said in its 1974 report – “Criminal standards and criminal courts were established to control individual conduct. Impeachment was evolved to cope with both the inadequacy of criminal standards and the impotence of courts to deal with the conduct of great public figures.”

And then Dershowitz shrugged again. He was having fun, she wasn’t, but Josh Marshall has a few things to say about this:

It is no exaggeration to say that the overwhelming bordering on universal weight of scholarly and historical opinion is that Dershowitz is wrong. But mine isn’t an argument to authority. It’s an overwhelming consensus because it is almost certainly correct. To note just one example, literally during the months in which the Constitution was being written Britain was roiled by an extremely high profile campaign for an impeachment which was on the basis not of statutory crimes but corruption and misrule.

My aim here is not to rehearse the arguments about what constitutes an impeachable offense. Others are doing that. What is so notable is that not only is Dershowitz no expert on this issue and in no way knowledgeable about it. He positively advertises the fact, as part of his own self-glorification and self-involvement.

Dershowitz explains that he took a diametrically opposed position about what constitutes an impeachable offense in 1998-99 because he hadn’t yet “researched” the topic. But in recent weeks, he points out, he’s “read all the books” and come to this new conclusion. And note that in 1998-99 Dershowitz had already been a professor at Harvard Law School for thirty-five years.

And there are Dershowitz’s own words:

I simply accepted the academic consensus on an issue that was not on the front burner at the time. But because this impeachment directly raises the issue of whether criminal behavior is required, I have gone back and read all the relevant historical material as nonpartisan academics should always do and have now concluded that the framers did intend to limit the criteria for impeachment to criminal type acts akin to treason, bribery, and they certainly did not intend to extend it to vague and open-ended and non-criminal accusations such as abuse of power and obstruction of Congress.

Marshall is not impressed:

Dershowitz is justifiably acclaimed as a criminal defense and a particularly appellate defense attorney, notwithstanding decades of escalating notoriety as a grandstanding attention whore. He is not a constitutional attorney. He is not an historian. And he is not any other kind of expert on impeachment. But now he’s spent a few weeks ‘reading all the books’ and he’s got it figured out.

This is the most classic sort of dilettante’s history. Understanding the past means more than just ransacking the library for proof texts and quotes. If we are trying to reconstruct the range of arguments the authors of the Constitution were making and how most Americans – who were indirectly responsible for ratifying the document – understood them you need a grounding in the history and debates of the time. Words do not speak for themselves. They have meaning in a particular historical context. We are not bound in our use of these words by their original historical context but we cannot make sense of them or any use of them for our own purposes if we are ignorant of that context.

To put it baldly, if it’s a topic and area of study you know nothing about and after a few weeks of cramming you decide that basically everyone who’s studied the question is wrong, there’s a very small chance you’ve rapidly come upon a great insight and a very great likelihood you’re an ignorant and self-regarding asshole.

Needless to say, those are odds Dershowitz is happy to take. Dershowitz has now “read all the relevant historical material” and has it covered.

That’s obvious bullshit, and Marshall says this is too:

If we take the most generous view of what Dershowitz is arguing, it is this: Impeachment was not intended to remove a President over policy disagreements or even being a terrible President. It is designed to remove Presidents over grave, high level wrongdoing, either statutory crimes or offenses against the constitution or society itself.

All you need to know of the absurdity of Dershowitz’s argument is that the most important kinds of wrongdoing a President can commit are ones that only he or she is even capable of given their unique position and powers. Congress would need to enact a special batch of special President Crimes to cover this.

A few days after announcing his new position, Dershowitz himself recognized this, so after declaring flatly that only statutory crimes were impeachable, he sensed the insupportability of this position and added a catch-all that “crime-like” wrongdoing or “criminal-like behavior” could also count.

With this caveat in hand, Dershowitz argues that “abuse of power” is basically a meaningless phrase which can mean anything and nothing. It’s too vague to be a standard for impeaching the President. In his presentation last night, he listed basically every President from the 20th century who someone at some point accused of “abusing their power.”

Maybe so, but if so, that would lead to this:

If a future House passed articles of impeachment which simply said the President abused his or her power and didn’t give any specific or detailed instances or explanation that really wouldn’t cut it. If they listed something trivial the Senate would be correct to reject the articles on those grounds. But of course the Trump “‘abuse of power” article contains a very specific and lengthy indictment about how the President solicited bribes, violated statute law and subverted the country’s security for his own personal gain.

In other words, the “abuse of power” article of impeachment contains precisely those “crime-like”, indeed criminal offenses Dershowitz says are necessary. Dershowitz’s entire argument, which purportedly rules out the entire impeachment on constitutional grounds, is a purely semantic one and that in the most trivial sense…

Strip away all the self-involvement and flimflam and Dershowitz’s argument on the Constitution is that the House chose the wrong label. That’s really the whole thing.

And there’s that other matter:

The argument given a few moments ago about quid pro quos from Alan Dershowitz was so disingenuous and willfully bamboozling that I think it’s important to briefly unpack it. Dershowitz argued that with many foreign policy decisions a President is both advancing the national interest and also looking to his personal political fortunes. That cannot be an impeachable offense, he argues.

Let’s consider, as he does, the Israel-Palestine conflict. Many Presidents have invested immense time in trying to solve this issue. Mainly they were trying to settle a conflict the continuance of which is a clear challenge for U.S. interests. But it’s certainly fair to say that President Clinton or Bush or Obama would have realized that if they succeeded it could certainly buoy their reelection prospects or general reputation as President. Big successes get Presidents reelected. Certainly this secondary motive couldn’t constitute an impeachable offense. Dershowitz is clearly right about this.

But this has no connection to the facts at issue. President Trump wasn’t pursuing a Ukraine policy the success of which he thought would secure his reelection. He was trying to get the President of Ukraine to interfere in and sabotage the next Presidential election in his favor. This is just categorically and obviously different. Dershowitz didn’t even do a good job obscuring this obvious difference.

So this isn’t exactly rocket science:

Trying to get foreign policy successes in part to improve your chances of reelection has nothing to do with trying to extort a foreign leader into interfering in your reelection on your behalf.

In fact, that’s self-involvement and flimflam. And that’s our president and his brilliant defender. And it may be that that’s America now.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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