During the trial of Donald Trump Attorney Alan Dershowitz advanced a controversial argument in defense of the president. Dershowitz has attempted to explain that his argument was not as radical as it seemed. While the senate’s decision is a forgone conclusion, this defense is philosophically interesting.
When asked by Ted Cruz about whether it mattered if Trump had engaged in a quid pro quo with Ukraine to help his election efforts, Dershowitz contended that motive is what mattered. If an act by a president was in the public interest, then that act would not be impeachable. Engaging in a chain of reasoning, Dershowitz asserted that it was rational for the president (and any official) to regard their own political interest in being re-elected as being in service of the public good. He noted that, “Every public official that I know believes that his 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 cannot be the kind of quid pro quo that results in impeachment.” He did acknowledge some limits to this; a quid pro quo involving an illegal activity or aimed at financial gain for the official could be impeachable offenses. In the face of backlash, Dershowitz has attempted to clarify his original argument. While Dershowitz claims that the media and his critics made a straw man of his argument, one can review the video of what he said and see that his complete argument in full context is as the media and critics claim. As such, let us consider his original argument and his later clarification.
Dershowitz’s logic is as follows:
- A president cannot be impeached for acting in the public interest.
- Motive determines whether the president acted in the public interest.
- All officials believe their re-election is in the public interest.
- Trump was motivated by his desire to be re-elected.
- Trump’s motivation was to act in the public interest.
- Trump cannot be impeached for actions taken to get re-elected.
- Trump’s attempted quid pro quo with Ukraine was an action taken to get re-elected.
- Trump cannot be impeached for his attempted quid pro quo with Ukraine.
There are numerous problems with this line of argument. While motive does matter in matters of ethics and law, motive alone is not the decisive factor. This is because evil actions and terrible consequences can arise from even the best of motives. As they say, the road to hell is paved with good intentions. And good actions and good consequences can arise from wicked motives. For example, one version of capitalism is morally justified by the notion that people acting from selfishness will create the best results. This is not to dismiss the importance of motives, but to put them in their proper role as one factor among many.
Dershowitz does focus on motive and tries to prove that Trump had a laudable motive, that of serving the public interest. His proof is that all elected officials believe that their re-election will serve the public interest and hence their acting to be re-elected gives them a good motive (to be re-elected). This is an odd bit of reasoning and one could imagine an abusive spouse using the same logic: a domineering and abusive spouse will tend to think they are the best for their spouse and hence they believe they are acting in the best interest of the spouse. But it would be wrong to say that they are acting in the interest of their spouse; this is not a matter of what they believe but a matter of fact. Likewise, for an elected official; the mere fact that they think their re-election is in the public interest does not make it so. That said, one could say that their motives are good to the degree they believe they are doing good; but this is hardly an adequate defense of their actions in the face of misdeeds.
As other critics have noted, Dershowitz’s argument would seem to warrant a politician doing anything to get re-elected—which is refuted by the very absurdity of the assertion. Dershowitz did note that illegal qui pro quos and attempts at self-enrichment would be wrong, but this still gives politicians a vast range of options when seeking re-election: they must merely avoid what is explicitly a crime and not enrich themselves financially. In the face of backlash, Dershowitz claimed that he had been the victim of straw man attacks. He asserted that “did not say or imply that a candidate could do anything to reassure his reelection, only that seeking help in an election is not necessarily corrupt.” As noted above, his complete words taken in full context certainly seem to say that a candidate could do almost anything—but he is right that he did place at least two limits on what could be done. Hence, a candidate cannot do anything by Dershowitz’s principle, but they could do anything that is not a crime or personally enriching (financially).
He is also right that seeking help in an election is not necessarily corrupt—just as killing a person is not necessarily murder. But Dershowitz runs into a problem here. While his original argument would, if it succeeded, get Trump off the hook, his modified reply would not—no more than saying “killing a person is not necessarily murder” would get a defendant off the hook in a murder trial.
Dershowitz says media deliberately distorted his arguments.
Jay Raskin says
I believe Alan Dershowitz was responding to the argument put forward by Adam Schiff that the president doing something for his re-election that endangered national security was an impeachable crime. Dershowitz made the counter-argument that virtually everything a president does is for his re-election so just doing something for re-election cannot be an impeachable offense.
“Endangering National Security” is a hard judgement call. Giving Ukraine offensive tank destroying missiles as Trump did and Obama refused to do could be seen as helping the national defense or endangering the national defense depending on if you think the results will lead to more war or less war.
The Democrats say that Trump suspended aid and endangered national security to get the Ukrainians to help his re-election.
The Republicans say that Joe Biden suspended aid and endangered national security in 2016 in order to help his son beat an investigation into his company’s corrupt practices.
For Dershowitz, what Biden did would be a crime. It was done for personal gain, helping a family member. A moral person would not do that. What Trump did would not be a crime simply because he felt exposing Biden’s crime would help his re-election chances? Virtually all politicians do things to help their re-election chances. All politicians do not and should not get prosecutors fired for investigating their son’s company.
I think that Dershowitz made an important distinction here. The motive itself, furthering one’s re-election is too vague, to be a crime or impeachable offense. It is a motive that politicians have for all their actions and there is no crime in it.
Real, tangible personal gain, such as helping a son’s company in a criminal investigation is a specific crime that can be investigated and found to be true or not true.
E. Simon says
“Motive alone is not the decisive factor”. This statement goes to the core of the issue proving Dershovitz is wrong especially about a constitutional issue. It is impossible that constitutional objectives rely on unverifiable motives and not on facts needed to be prevented or if proven punished by impeachment. Motives can neither be guessed by mind reading nor assumed by generalities like all rulers believe their being the ruler is in public interest. Furthermore the formulations like seeking reelection and quid pro quo used by Dershovitz disguise the moral nature of quid pro quo which may matter. Unfairly and untruthfully smearing, damaging and eliminating the political opponent means rigged elections. Democracy protected by constitution is based on free and fair elections and thus not compatible with rigged elections. Dershovitz should have studied Dworkin, who advocated the idea that a constitution defines the fundamental political principles and establishes the power and duties of each government, and does so while being consistent with a moral code.
It is amazing that Dershovitz is wrong on the constitution or that the line of his loyalty to his client is much closer to him than the line of ethics to protect and respect constitution.
“Motive alone is not the decisive factor”. This statement goes to the core of the issue proving Dershovitz is wrong especially about a constitutional issue.”
No, you’re wrong, Dershowitz. is correct. Such has already been decided by the Supreme Court in cases such as Whren v. US, which decided that police “pretext stops” were legal. A pretext stop is when a police officer, for example, pulls someone over because their headlight is out, but what he really wants to find is a drunk driver. The court explained that it could not and would not attempt to read the mind of the officer. Either a violation occurred that allowed the cop to make the stop, or it did not.
Similar legal cases exist in “plain view” cases, in which cops are perhaps invited inside a residence because, say, a complainant wants to file a report for stolen property, and the cop happens to see drug paraphernalia on the coffee table… Horton v California. The cop may have even intentionally asked to come inside, in hopes of finding illegal materials. Once the resident allows the officer is in, no warrant is needed to seize materials in open sight to the police. The cop’s motive does not matter.
The key word that Dershowitz uses is “alone”.
Dershowitz messed that one up. It was a self-inflicted wound. But he did not make the argument you characterise above.
Since the video is available, I checked – not commentary purporting to summarise the video, but the actual video.
“Q: As a matter of law, does it matter if there was a quid pro quo?
A: The only thing that would make the quid pro quo unlawful is if the quo were in some way illegal.”
Question answered, Alan. Well done. Sit down. No? Oh, no! Aaaaand then he’s off in the weeds about the possible motives for a hypothetical quid pro quo, which wasn’t asked. Don’t they teach lawyers when to shut up?
He then makes the point that there are three possible types of motive for a president, or any politician, to make a decision:
a) that it is in the public interest,
b) that it will help them get re-elected, which they are entitled to believe is in the public interest
c) a purely corrupt and selfish motive like personal gain
and that when the possible motives are a mix of a) and b), an impeachment cannot be based on psychoanalysing the possible weights the decider assigned to each.
I agree with this, btw. That’s why I say that even in the worst case there is no basis for impeaching Trump on this incident, and there was no basis for impeaching Biden. Similar to the principle of double effect.
I’m sorry, I should have addressed this specifically:
Hence, a candidate cannot do anything by Dershowitz’s principle, but they could do anything that is not a crime or personally enriching (financially).
“A: The only thing that would make the quid pro quo unlawful is if the quo were in some way illegal.”
Dershowitz spent over an hour on his main statement, and I think over 50 minutes of that was justifying that answer. His conclusion is that the president cannot be impeached for something that is not a crime – or at least “crime-like”, in the sense of being substantially similar to a crime, but perhaps avoiding being a crime by a loophole.
That was clearly stated before his lost his GPS and went wandering all over the map about motive.
“Maladministration”, the making of decisions that are thought by someone not to be in the public interest, was debated by the framers and specifically excluded.
So yes, what he’s saying is that the president can be impeached only for crimes or “crime-like” behaviour.