Dershowitz is Wrong: What Trump Did Was a Crime

Desperate to acquit Donald Trump of impeachment charges, Senate Republicans have seized on Harvard Law Professor Alan Dershowitz’ two part defense. That conviction requires Trump to have committed a crime and that it was no crime for Trump to condition aid to Ukraine and a meeting with its president on Ukraine investigating Trump political rival Joseph Biden.  There is but one flaw in Dershowitz’ argument.  It is flat wrong.  Section 201 of title 18 of the United States Code makes it a crime for a public official to solicit a bribe.  And that is exactly what Trump did.

An earlier post explained that the cornerstone of section 201 is the exchange of one thing for another, in Latin a quid pro quo.  Not even Trump’s staunchest Senate defenders now deny that Trump sought a “quo,” an investigation of Biden, in return for a “quid,” aid and a meeting. The escape Dershowitz offers is that by itself a quid pro quo is not a crime.

“Let’s assume a Democratic president tells Israel that foreign aid authorized by Congress will not be sent or an Oval Office meeting will not be scheduled unless the Israelis stop building settlements. Quid pro quo . . . but it would not constitute [the crime of] abuse of power.”

Dershowitz is correct — as far as he goes.  A quid pro quo by itself does not violate section 201.  Otherwise the Democratic president’s dictate Dershowitz conjured up would indeed be criminal.

What the professor neglects to say is that a quid pro quo is a crime when, as section 201 states, it is done “corruptly.” This “fudgy adverb,” as Albert Alschuler calls it in a seminal exposition of bribery law, has lent itself to several interpretations.  Perhaps the most thoughtful is one advanced by the intellectually renowned (conservative) federal jurist Alex Kozinski.  A quid pro quo is done corruptly, Kozinski has written, if its imposition is “an improper way for a public official to benefit from his job.”

“What’s improper turns on many different factors,” Kozinski wrote, “such as tradition, context and current attitudes about legitimate rewards for particular officeholders.” During the hearing on his nomination to be ambassador to Russia, then Deputy Secretary of State, and now Ambassador John Sullivan told Senators it would never be appropriate for the president to use his office to solicit investigations into his domestic political opponents. No Senator disagreed.

Whether, in Judge Kozinski’s formulation, a legitimate reward for being president is the power to condition aiding an ally ward off an aggressor on its government helping the president win reelection is the question now before the Senate.  If it decides that “corruptly” is not fudgy enough to cover that sort of conduct, Americans can only fear what else is not covered.



4 thoughts on “Dershowitz is Wrong: What Trump Did Was a Crime

  1. Dershowitz set up a straw man that it is not corrupt for a President to take a popular political act for the purpose of getting elected. Of course this had nothing to do with the facts of the Trump impeachment. So Dershowitz expressed this meaningless proposition in a way that could be and was broadly misunderstood to say that a corrupt quid pro quo could never be impeachable if it helped a president get reelected. In later interviews with smart interlocutors like Ari Melber, Dershowitz denied this ministerpretation of what he intended to say and insisted that he had nothing to do with the facts of the impeachment.
    Dershowitz’s straw man proposition is simply irrelevant to the facts of the case, and therefore is another diversion like the remainder of Trump’s defense.

  2. Thanks for the post. I agree that Dershowitz is wrong on Trump’s case, but isn’t there something in the argument that the benefit of reelection should be treated differently than material benefits such as cash envelopes? Perhaps not from a strictly theoretical point of view, but given the actual political tradition – where do you draw the line? What about passing pro-gun right laws in exchange to NRA support to get reelected? Or giving a reporter access to the white house for positive coverage? Analytically speaking there seem to be practices that fall under Dershwitz’s definition that probably would not be considered corruption or abuse of power, and then it’s the common question of line-drawing

    • To your question:”[I]sn’t there something in the argument that the benefit of reelection should be treated differently than material benefits such as cash envelopes?” I’d argue yes: abusing power for an electoral advantage is fundamentally worse than abusing power for material benefits. (Though they can certainly be related.) And, the framers thought so too! As Harvard Law Professor Noah Feldman discussed in the House Impeachment Hearings, the founders originally wanted to limit the range of impeachable offenses to “treason” and “bribery” for fear that a broad definition would be too readily weaponized by the Legislature to change the results of an election. The framers believed that a national election was a far more democratic/reliable remedy than impeachment to remove bad apples from office. (An argument Republicans echoed in letter, albeit perhaps not spirit, last month.) But the framers soon abandoned that theory of impeachment after one delegate sagely explained the repercussions: if a President can’t be impeached for anything besides Treason or Bribery, he could all too easily abuse his power to distort the electoral process itself and perpetuate his tenure in office, with real check from the People or the First Branch. And so, they ultimately decided to add “other high crimes and demeanors” to encapsulate misbehavior Trump has committed and preserve the power of both Congress & the electoral process.

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