Last week it was announced that Alan Dershowitz will join Donald Trump’s legal team, and over the weekend he laid out his specialized role. He will advance the argument that the charges the House impeachment lays out do not rise to the level of high crimes or misdemeanors laid out in the Constitution.
Almost immediately, a profound confusion occurred as to what this means. Take this exchange on Twitter:
If this is so, it’s essentially asking Congress to buy a self-neutering argument. And Madison was worried Congress would be the pushy one! https://t.co/XBqH1KICsr
— John Dickerson (@jdickerson) January 17, 2020
The underlying assumption here is that Dershowitz and by extension the Trump legal team are conceding that Trump abused power, but arguing that this does not meet the standard for impeachment. Nothing could be farther from the case. Dershowitz is arguing in the alternative, a legal and debate technique meant to preempt the other side’s arguments. Dershowitz is not conceding that the president abused power. Dershowitz is saying that even if he did, and Trump and his team hold he did not, it still wouldn’t meet the criteria for removal.
Arguing in the alternative is a fairly common practice, but also a risky one. The danger is that it can confuse juries and make it appear the defense is admitting wrongdoing when it isn’t. In this case, there are two juries, the 100 senators, who are likely savvy enough to understand what Dershowitz is doing, but also the jury of public opinion, which is more susceptible to the idea that some kind of towel is being thrown in.
For months, many on the left and even some on the right have believed that the president’s defense would or should eventually move away from a case based on the facts to a defense based on the infraction not meeting the impeachment standard, Jonah Goldberg essentially argued this is in The New York Post in back in October. But this hasn’t happened, Trump’s primary defense still is as it always has been: that the phone call with Ukrainian president Zelensky and the delay of military aid were perfectly legal and within the president’s authority.
But that will not stop the president’s opponents from trying to frame Dershowitz’s argument as either an admission of guilt, or at least a hedging of the bet. And because this is a television event, Dershowitz will need to be very careful. If even once he forgets to caveat his position, if instead of saying, “Even if the president was out for political gain, it’s not impeachable,” he says, “The fact that the president was out for political gain does not make this impeachable,” it will be a soundbite heard ’round the world.
So why take this risky approach when the possibility of the president being convicted and removed is so low? There is a potentially massive upside to the gambit. At this point, Democrats’ fierce last stand on impeachment is calling for new witnesses, including former National Security Adviser John Bolton. To get those witnesses, Democrats need four moderate or politically vulnerable Republicans to vote for it. Dershowitz’s argument in the alternative could give those senators the off ramp they need to acquit without calling witnesses.
One can see a Sen. Susan Collins or Sen. Mitt Romney saying that she or he found Dershowitz’s argument compelling and sees no reason to go any further, given that even if Trump did delay aid for his own political benefit it is not sufficient reason to remove him from office. This would have the added benefit of allowing them to acquit without actually giving the president’s actions a stamp of approval.
All in all, the potential rewards seem to outweigh the potential risks in this argument in the alternative. This is especially so because Trump will no doubt be blaring his message of total innocence, making it more difficult for his detractors to argue that the defense team has made a big concession.
Dershowitz may be the most famous defense attorney of his era, a figure one might speak of in the same breath as Clarence Darrow. The successful defense of a sitting president would be a compelling capstone to his career.
But it is vital that everyone understand what he is and is not doing with his impeachment argument. How clearly the public understands that will largely fall on his shoulders, but make no mistake, there will be efforts to obfuscate his intentions. The president’s team needs to be ready for that.