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.
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| 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.
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