Harvard Law Professor Emeritus Alan Dershowitz stunned many on both sides of the Trump impeachment debates in the Senate this week by making an unprecedented case for an American führer. Or as The New Yorker’s columnist Susan B. Glasser put it, the Dershowitz defense is that l’état, c’est Trump. She was, of course, paraphrasing the attributed (but not historically proven) words of French King Louis XIV, a firm and unapologetic believer in dictatorship by divine right, who was alleged to have said “L’état, c’est moi (“I am the state”) in justifying his all-pervasive power.
|Harvard Law's Alan Dershowitz|
Arguing the legal case against US President Donald Trump’s impeachment for abuse of power in withholding crucial, congressionally approved military aid to Ukraine—a country that is literally fighting for its life against Russian insurgents—until that country’s president agreed to help undermine the reputation of his chief political opponent, former Vice-President Joe Biden, Dershowitz posited that the chief executive could basically do whatever it took to remain in power. As other high profile legal experts immediately pointed out, the Harvard professor’s argument mirrors precisely the tenets of authoritarian regimes throughout history and the world.
In the words of Dershowitz, "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."
Taking that analogy to the next level, Dershowitz went on to say, “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." Later he came back to this l’état, c’est Trump defense, saying that, "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."
The implications of Dershowitz’s words are democratically devastating, if anyone takes them seriously. And many Republican politicians are doing just that to justify their own groundless defense of the president’s clearly questionable actions. This, they contend, is the argument of one of the country’s most renowned legal minds, a Harvard professor emeritus and a highly successful defense lawyer in some of the country’s most high-profile and controversial legal cases. He thinks the same way we do.
But the truth is that, simply stated, what Dershowitz is saying is that any means whatsoever justify Donald Trump’s personal and political ends. This is not an argument many of us—hopefully a majority of us—ever thought we would hear in the United States of America, and certainly not in the Senate before the chief justice of the US Supreme Court, who is presiding over the proceedings. A constitutionally democratic republic like ours is supposed to be based on equality under the law and the separation of political powers into three distinct and equally powerful branches of government. No one is supposed to be above the law or above the traditional ethical and moral standards for his or her office. Not even the president. Indeed, especially not the president, who is supposed to govern within the laws and best ethical tenets of the Republic.
For instance, under Professor Dershowitz’s logic, Watergate, which arguably pales by comparison to President Trump’s abuse of power, would never have led to impeachment. Dershowitz basically proposes that if a president thinks his or her remaining in power and his or her opponent’s being prevented from being in power is “in the public interest”, then it indeed is in the public interest, and the person in the White House—clearly he is talking about Trump without any thought as to what this legal argument would mean to the future of the presidency and of the Republic—can defend his hold on power by hook or by crook. According to the Harvard law professor, just about anything goes.
Questions Dershowitz should be asked include: If the president has to trump up charges against an opponent in order to remain in power, is that legal? His answer is obviously affirmative, since that’s precisely what Trump was trying to do against candidate Joe Biden and his son Hunter. And how about accepting the help of a hostile foreign power in disseminating false information as a means of pitting Americans against each other and influencing the outcome of a presidential election? It would seem that his answer to that is also “yes”, since that is exactly what candidate Trump did in 2016. And what if it were, in the president’s view, in the public interest to fail to admit defeat in a re-election bid, declare a state of emergency and incite his followers to mount an armed rebellion? Would Professor Dershowitz consider that also to be within the president’s right, “in the public interest”?
It is hard—if you’re not a Republican senator seeking to defend the indefensible and to justify all of the truly questionable things that Donald Trump has done and said since taking office as “just Trump being Trump”—to view these latest statements by Alan Dershowitz as anything but a disingenuous bid to mount a defense for the president in the absence of any concrete evidence in his client’s favor. This is especially true since, in 2016, Dershowitz was quoted as saying that Donald Trump was “more corrupt” than Hillary Clinton, and made a backhanded plea in Clinton’s favor by adding that "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." He called on Americans to vote for the lesser of two evils, saying, "When you compare (Hillary) 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."
This is also the self-same professor Dershowitz who, in the lead-up to then-President Bill Clinton’s impeachment for lying to Congress about an extramarital affair (a crime that seems utterly ludicrous in the Age of Trump), argued that Hillary’s husband could indeed be impeached for lying under oath about having consensual sex with a White House intern. "It certainly doesn't have to be a crime,” he posited. “If you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty, you don't need a technical crime."
Now, in his defense of Trump, he claims only a verifiable and prosecutable crime will do as probable cause for impeachment. And when other legal experts called him on it, his excuse was that he was “more right” now than then. Obviously, the difference between right and wrong in Dershowitz’s mind depends on who his client is and what his political leanings of the moment are. If the defendant is his client, whatever he or she is accused of is apparently neither illegitimate not illicit.
I don’t take lightly or unadvisedly my reference in the first paragraph of this editorial comment to Dershowitz’s having made a case for “an American führer.” An even summary view of history makes it clear that Adolf Hitler’s path to power in Germany was paved with the acquiescence of those who preceded him. The parallels between then and now are chilling. Political parties at odds and in chaos, one failed attempt after another to achieve cross-partisan agreement in order to solve the country’s pressing problems. The bending of laws, rules and political traditions to accommodate the radical whims of a charismatic leader. The failure of the country’s authorities or of its people to rein in a popular politician who was accruing powers beyond those permitted under the national charter. Ever-waning support for individual rights, a free press, and political plurality. These were all elements that were part and parcel of Hitler’s rise.
It is an authoritarian idea, pure and simple to suggest that a president—and particularly Donald Trump, who, when China named their leader, Xi Jinping, “president for life”, quipped, “maybe we should try that here” — has no limits on what he can do to remain in office. One that has no place in any sort of serious legal defense, and certainly no place in a constitutional democracy. Professor Dershowitz should and does know better, and is desperately grasping at straws in a defense that is indefensible, as is his client. This proposition should constitute an embarrassment not only to him but also to the renowned university that he represents. And it is one that, if accepted as valid in this Senate trial, opens the door to ever greater abuse of power by successive occupants of the White House in the future.