Dear Mr. Dershowitz, ‘mixed motives’ is no impeachment defense when there’s corrupt intent

Sen. Susan Collins opened the question-and-answer portion of the Senate impeachment trial by asking whether President Donald Trump was guilty if he had “mixed motives.” In other words, what if he was protecting both American interests by seeking an investigation of alleged foreign corruption, and protecting his own interests because the investigation — and its announcement — would smear his rival, Joe Biden?

The president’s lawyers responded that the Senate cannot properly convict a president for a “mixed motive” quid pro quo. After all, Professor Alan Dershowitz argued, all elected officials take action to help their electoral prospects, and all believe that the nation is best served by their re-election. Presidents may not be removed from office for self-serving actions that also advance the public interest.

This absurdist argument is raised as a smokescreen to avoid what makes a trial a trial: hearing testimony from first-hand witnesses such as former national security adviser John Bolton, who says the president told him he would only allow military aid if Ukraine investigated former Vice President Joe Biden and his son, Hunter. The Dershowitz argument is also dangerous: There is a night-and-day difference between a president’s advancing his re-election prospects by signing a trade pact with Mexico and Canada, versus pressuring an ally to help tar his political rival.

Trump had no legitimate motives

A presidential quid pro quo that includes a corrupt motive is unlawful, regardless of whether the president believes that the country’s well-being depends on it. If Trump told Lev Parnas to get his Russian sponsor to give $350,000 to the Trump re-election campaign so that no Democratic socialist got into the White House, the action violates federal law. No matter that the president believes socialism is bad for America.

If the president is immune in that situation because he believes that the outcome is best, we are dangerously close to President Nixon’s rule:”If the President does it, it’s not illegal.” “L’etat c’est moi,” said King Louis XIV.

But we live in a republic where the law is king, and no one is above it. Trump’s actions in Ukrainegate speak far louder than his defenders’ words. Taken together, those actions — at least seven of them — contradict the claim that he had any legitimate national interest in mind.

Chief Justice John Roberts reads a question during the impeachment trial of President Donald Trump in the Senate in Washington on Jan. 29, 2020.

►Trump directed U.S. government officials to “talk to Rudy” about the Ukraine “problem.” A president having his personal lawyer in the lead of a foreign policy or investigation is inconsistent with public purpose, and consistent with a purely private motive to be kept out of view.

►The president made no objection to the May 2019 certification by the Defense Department, in consultation with Secretary of State Mike Pompeo, that Ukraine had met its anti-corruption obligations.  If the president believed it his public responsibility to correct Ukraine’s failure to investigate a former vice president’s purported involvement in Ukrainian corruption, one would have expected him to contest that certification. (The allegations against Biden were well publicized by May 2019.) 

►The administration consistently sought to cut funds aimed at combating corruption in Ukraine. That action was inconsistent with any purported belief of the president that he had duty to the public to have Joe Biden investigated.

►When career professionals in the Office of Management and Budget objected that the hold on military aid was illegal, the administration offered no explanation for the hold, instead transferring control to a political appointee, Michael Duffey. That conduct exemplifies corrupt intent. The nonpartisan Government Accountability Office’s conclusion that withholding the aid was unlawful reinforces that conclusion.

►In 2017 and 2018, Trump provided lethal military aid without threat of delaying it. He changed course only after Biden declared his Democratic presidential candidacy in April 2019. It had been widely publicized years earlier that Hunter Biden, his son, had joined the board of Ukrainian energy company Burisma.

►The ex post facto efforts to come up with an explanation for the delay in aid are powerful indications of corrupt intent.

►Where is the evidence of the president fighting any supposed corruption, at home or abroad, not tied to a political rival?

All these indicators of corrupt intent are reinforced by the obvious inference from the presidential blockade of testimony and documents sought by Congress. Stonewalling leaves the obvious inference of intent to conceal guilt.

Together, these factors — combined with the president’s focus on the Bidens in the July 25 call and an Oct. 3 press availability on the White House lawn — constitute overwhelming proof of corrupt intent. The message of this impeachment to future presidents is simple: Using the levers of American power to invite foreign intervention in our elections, especially while displacing official channels and career professionals who insist on following legal rules, will subject you to removal.

Dennis Aftergut is a former federal prosecutor and current co-chair of the Coalition to Preserve, Protect & Defend, a nonprofit group of 20 volunteer lawyers that is challenging President Trump’s pardon of Joe Arpaio.

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