Donald Trump lawyer's impeachment argument stokes fears of 'normalisation of lawlessness' by a president
Washington: When a lawyer for President Trump'>Donald Trump suggested to senators within the week that whatever a president does in pursuit of reelection is inherently in the public’s interest, the instant crystallised fears among a number of Trump’s critics about creeping presidential autocracy.
“If a president does something which he believes will help him get elected within the public interest, that can't be the type of quid pro quo that leads to impeachment,” said the lawyer, Alan Dershowitz. He sought on Thursday to clarify or walk back his remarks, saying on Twitter that they were mischaracterised.
But the wave of shock underscored how the politics of the Trump era — and his lawyers’ efforts to assist Trump advance his agenda and defend himself from scrutiny — became infused with concerns about executive power overreach.
The constitutional system is made on the thought that every of the three branches of state depends upon and is accountable to the others, said Peter Shane, an Ohio State University law professor and co-author of a separation-of-powers casebook, but an accumulating pattern of claims and actions by the Trump administration has called that into doubt.
“What is horrifying about Trump’s view of executive power is that he tries to try to to the maximum amount as he can without the sanction of Congress, and to resist oversight by the opposite branches,” Shane said. “Put all that together and you get an image of an Executive Office of the President during which all activity is subject to the whim of the president, and the way that whim is exercised can't be effectively checked.”
The list of the way during which Trump and his legal team have pushed limits is growing.
In the Ukraine affair, his lawyers have argued that nothing is impeachable or illegal about using his official powers to coerce a weak ally to announce a corruption investigation into a domestic political rival, and therefore the Senate’s Republican majority will likely vote to acquit him.
Along the way, Trump’s legal team came up with a theory by which the chief branch could lawfully withhold from Congress a whistleblower complaint that an military officer had deemed an “urgent concern.” A law says that the administration “shall” disclose such a complaint to lawmakers.And before the Ukraine affair came to light, lawyers within the White House budget office developed a legal theory that Trump had constitutional authority to withhold military aid from Ukraine, overriding the Anti-Impoundment Act. They never activated that theory, since he released the help after the whistleblower filed his complaint.
The president’s edgy views of executive power didn't start with Ukraine. Trump himself has repeatedly claimed that Article II of the Constitution, which creates the presidency, gives him “the right to try to to whatever i would like .”
He has said he could pardon himself and vowed to systematically stonewall “all” congressional subpoenas.
Trump broke with a long-held norm by personally ordering an investigation into the Russia investigators, and he repeatedly tried to impede the special counsel inquiry, boasting that he has “an absolute right to try to to what i would like to with the Department of Justice .”
After William Barr, a longtime believer during a maximalist interpretation of presidential power, privately provided the Trump administration with a legal theory by which obstruction of justice laws don't apply to presidents who abuse their power over the Department of Justice , Trump appointed him attorney general.
In domestic policy, Trump has pushed the bounds of emergency powers laws to say a right to spend more taxpayer money on a border wall with Mexico than Congress was willing to appropriate. In policy , he launched strikes at the Syrian government without permission from Congress, and nearly brought the country to war with Iran by killing a senior Iranian general without consulting lawmakers.
Against the backdrop of all this and more, critics of Trump seized on Dershowitz’s remarks. The leader of the House impeachment managers, Representative Adam Schiff, D-California, told the Senate on Thursday that Trump’s team had embraced the vision of a presidency that exists above the law — “when the president does it, meaning it's not illegal” — that Nixon famously articulated to defend his conduct after Watergate.
“We are right back to where we were a half-century ago — and that i would argue we could also be during a worse place because this point , this point that argument may succeed,” Schiff said, accusing Trump defenders of embracing “the normalisation of lawlessness” by a president.
Dershowitz didn't attend the impeachment trial on Thursday, but another member of the president’s defence team, Patrick Philbin, also distanced himself from the impression Dershowitz had left.
“The suggestion has been made due to Dershowitz’s comments that the idea that the president’s counsel is advancing is, ‘the president can do anything he wants if he thinks it'll advance his reelection, any quid pro quo, anything he wants, anything goes,’ which isn't true,” Philbin said.
On Twitter, Dershowitz said that the intended meaning of his remarks the previous evening, which circulated widely on social media and aired repeatedly on television, had been distorted.
“They characterised my argument as if I had said that if a president believes that his reelection was within the national interest, he can do anything,” Dershowitz wrote. “I said nothing like that, as anyone who actually heard what I said can attest.”
At least one a part of Dershowitz’s self-defence seemed accurate. Some Democratic senators and other critics accused him of suggesting that even Nixon wasn't impeachable, despite his clear crimes. But that accusation is incompatible with Dershowitz’s main argument: That an impeachable “high crime and misdemeanour” requires an indictable offense.
(His embrace of that view was itself disputed. It cuts against the view of most legal scholars, and he himself said in 1998 that he thought a “technical crime” wasn't required to impeach a president who abuses power. He has since disavowed that view, saying he changed his mind after research.)
But the context of Dershowitz’s view that abuse of power, absent an indictable crime, isn't impeachable provides a guide for sorting through his inflammatory remarks, which were muddled in places.
Dershowitz made his remarks in response to an issue posed by a Republican senator about whether quid pro quos are routine in policy . The president’s defence team has repeatedly acknowledged that administrations commonly withhold assistance as leverage to induce another country to require some step.
The point elides the excellence between a president who is attempting to realize some public policy goal or to get a private benefit. In his answer, Dershowitz seemed to be attempting to rebut that objection, including by arguing that a president may have quite one motivation for acting.
Specifically, he was arguing against the thought that presidents are often impeached for otherwise lawful actions if they're motivated by gaining personal political benefits instead of serving the general public interest. One reason this is able to be folly, he maintained, was that always both motivations will simultaneously exist.
(Trump’s legal team has argued that he had a sincere interest in fighting corruption in Ukraine. House impeachment managers have scoffed at that notion and portrayed him as solely motivated by a desire to manufacture a basis to smear a political rival as corrupt.)
But as he riffed, Dershowitz went further than merely observing that presidents routinely believe popular opinion — that's , voter sentiments — also because the public good once they weigh potential actions.
He also collapsed any distinction between those two motives by saying that politicians often justifiably believe that their reelection would serve the general public interest. That a part of his remarks went viral.
But the larger context was that under Dershowitz’s theory, even a president who nakedly abuses power, with none regard to the purported public good, can't be impeached — goodbye as there's no indictable offense.
On Thursday, Dershowitz emphasized that he wasn't trying to speak that presidents wield unfettered power once they try to urge reelected.
“Let me be clear once more (as i used to be within the Senate): a president seeking reelection cannot do anything he wants,” Dershowitz wrote on Twitter. “He isn't above the law. He cannot commit crimes.”
But, he argued, a lawful act “does not become unlawful or impeachable if through with a mixed motive of both promoting the general public interest and helping his re-election.”