“They characterized my argument as if I had said that if a president believes that his re-election was in the national interest, he can do anything. I said nothing like that,” the emeritus Harvard Law School professor tweeted before Trump’s impeachment trial resumed without Dershowitz’s presence at the defense table.
“Let me be clear once again (as I was in the senate): a president seeking re-election cannot do anything he wants. He is not above the law. He cannot commit crimes. He cannot commit impeachable conduct.”
But that is exactly how Dershowitz’s remarks were interpreted.
Senate Minority Leader Charles E. Schumer (D-N.Y.) called Dershowitz’s argument a “load of nonsense.” By Dershowitz’s logic, Schumer told reporters, President Richard M. Nixon did nothing wrong in Watergate, Schumer said of the 37th president who resigned before facing impeachment.
“The Dershowitz argument frankly would unleash a monster, more aptly it would unleash a monarch,” Schumer added.
House Speaker Nancy Pelosi (D-Calif.) said Dershowitz’s reasoning would undermine U.S. elections by essentially inviting foreign interference.
“In this case, ‘The Russians are coming, the Russians are coming,’ ” she told reporters.
Hillary Clinton quote-tweeted a video clip of Dershowitz on the Senate floor Wednesday with the message: “In America, no one is above the law.”
The House voted in December to impeach the president on charges of abuse of power, for allegedly withholding military aid from Ukraine until its government announced investigations into Trump’s political rivals, and obstruction of Congress.
Dershowitz’s controversial statement came in response to a question from Sen. Ted Cruz (R-Tex.) about quid pro quos.
“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,” Dershowitz said.
As the Senate question-and-answer session continued Thursday, Rep. Adam B. Schiff (D-Calif), one of the House impeachment managers, invoked Dershowitz’s argument, calling it a “descent into constitutional madness” and said there is “no limitation” to such an argument “no matter how corrupt the quid pro quo is.”
Dershowitz was watching from his home in Miami — not sidelined from the trial, he said, but because of a prior commitment. Trump’s other lawyers, he added, “begged me to stay.”
Dershowitz insisted in an interview that if a president commits a crime, then he can be impeached. If a president’s action is lawful, however, he said it cannot be turned into an impeachable offense just because the decision was motivated in part to help his reelection.
He was responding, he said, to an assertion from House managers that any action by a politician motivated in part by a desire to be reelected was corrupt.
“This was not an accidental misreading,” Dershowitz said soon after writing a column to rebut the criticism. “Politicians, pundits and academics all ganged up on me basically to deliberately and willfully distort what I said.”
Dershowitz’s argument this week was an extension of the case Trump’s legal team has made in recent days. Even if the president did use his office to press for an investigation of a political rival, they say, his actions do not add up to an impeachable offense because no crime was committed.
That view is at odds with the position of mainstream constitutional scholars, who note that a statutory crime has never been required for impeachment. Dershowitz’s colleagues and former students were similarly troubled by his most recent assertion.
“It’s really alarming because its part of the notion that the president can do whatever he wants. What if, for instance, the president ordered the criminal prosecution of his opponent in an election?” said Harvard law professor Charles Fried, a longtime colleague of Dershowitz’s who served as solicitor general under President Ronald Reagan. “I don’t understand the Dershowitz argument.”
Orin Kerr, a professor at the University of California at Berkeley School of Law, said if there’s no difference between a politician’s personal interest and the public interest, then presidents can abuse their powers, for instance, by arresting their opponents.
“The sky’s the limit in terms of what horrible abuses a president can do that would be entirely unimpeachable. That’s an astonishing position,” said Kerr.
Throughout the Senate trial, Dershowitz has been repeatedly referred to as “professor” by lawmakers, the president’s attorneys and even Chief Justice John G. Roberts Jr., who is presiding over the proceedings.
Kerr noted that Dershowitz is not participating as a scholar, but as a vigorous advocate for his client, President Trump.
“His ethical responsibility is to say whatever helps Trump,” said Kerr, who was a student in Dershowitz’s legal ethics class in 1997.
The key lesson of the class: “When you are a defense attorney, your loyalty is to your client, and you should do anything you can to help your client, right up to the line of violating the ethics rules.”
The particular argument Dershowitz is making, Kerr said, may be “unpersuasive legally, but lawyers make unpersuasive arguments all the time.”
Felicia Sonmez and John Wagner contributed to this report.