When all the evidence of your crimes is so obvious that refuting it is no longer an option, legal strategists are forced to rely on novel defenses.
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Donald Trump’s attorney Alan Dershowitz has come up with a doozy in his attempts to defend the president from being removed from office over the charges of abuse of power and obstruction of Congress that the House Democratic impeachment managers have proven in great detail during their presentations to the Senate.
It is a similar defense that many of Trump’s Republican political supporters have tried to use before in the media, but coming from a Harvard professor and scholar of constitutional and criminal law, it’s a surprising interpretation of the U.S. Constitution that may tarnish the professor’s reputation for the remainder of his career.
With the trial now in the phase when the Senators get to submit written questions to both the House impeachment managers prosecuting the case against Trump and to his defense team after their respective opening arguments, Dershowitz responded to a question submitted by Senator Ted Cruz regarding the impeachable nature of a quid pro quo sought by a president in the conduct of U.S. foreign policy.
The claim that Dershowitz made in his response should outrage any citizen who believes that no one is above the law, especially not the president — a position designed by the framers of the Constitution to have none of the monarchial privileges possessed by the English king whose rule the then-nascent country had just fought to escape.
“The only way that would make a quid pro quo unlawful is if the quo were in some way illegal,” Dershowitz claimed.
“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 continued.
“Every public official that I know believes that his election is of the public interest,” he adds.
Apparently Dershowitz only knows highly partisan Republican public officials.
Trump attorney Alan Dershowitz: "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." https://t.co/fGLWCMjIXu pic.twitter.com/sx8H2Pzs1O
— ABC News Politics (@ABCPolitics) January 29, 2020
In essence, what Dershowitz is claiming is that no president — no public official, in fact — can ever be impeached if they simply claim that whatever offending action they took to garner charges of impeachment from a majority of the House of Representatives was intended to help them get reelected.
Such an interpretation of the Constitution is so obviously outside the original intent of the founding document’s authors that conservatives always love to cite that Dershowitz should be immediately drummed out of The Federalist Society.
One has to wonder, if Dershowitz’s interpretation is correct, why the authors would have bothered debating and writing an impeachment clause in the Constitution if they intended to include a loophole so big that any first-term president would be able to act with impunity, secure in the knowledge that they had a get-out-of-impeachment-free card up their sleeves.
The constitutional expert on Trump’s defense team also put presidents in their second term in office at a distinct disadvantage according to his theory since — being prohibited from a third term by the 22nd Amendment — they presumably would not be afforded this defense.
The obvious deadly theoretical implications of Dershowitz’s logical fallacy in his desperate argument against Trump’s conviction and removal from office were pointed out by Adam Serwer, a staff writer at The Atlantic in a way that emphasized the absurdity of Dershowitz’s slippery defense.
Any Senator who accepts Dershowitz’ theory might as well start getting their outfits ready for the coronation ceremony because, if this legal interpretation is accepted and allowed to stand, the entire system of checks and balances in our Constitution will have been destroyed and America will be ruled by the whims of an all-powerful dictator who could suspend elections altogether without the threat of impeachment if they merely claimed that they believed that it was in the national interest.
How many of you doubt that that is something that Donald Trump would be capable of trying to do?
The prosecution rests— at least over the issue that Alan Dershowitz is trying to call into question.
Original reporting by Benjamin Siegel . Quinn Owen at ABC News