Last week when it was announced that Alan Dershowitz was joining President Trump’s legal team, I warned in these pages that his complex argument in the alternative, in which he claims that even if proven what Democrats allege regarding Ukraine does not rise to the level of impeachment, was ripe for mischaracterization. The news media has not disappointed on that score.
The first misunderstanding came just hours after the announcement of his role. Many in the news media erroneously claimed that Dershowitz, and by extension Trump’s legal team, were conceding wrongdoing, and that Republicans were moving the goalposts away from a “perfect call.” This was never true, but was too attractive a narrative for many to pass up.
Yesterday the deceptive coverage of Dershowitz got even worse.
Alan Dershowitz, one of President Trump's defense lawyers, argued that anything a president does to get re-elected could be considered in the nation's interest and is therefore not impeachable.https://t.co/ptlmibuTni
— The New York Times (@nytimes) January 29, 2020
“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,” said @AlanDersh. Of course! It’s the old Louis XIV “l'état, c'est moi” defense.https://t.co/ViE2efWTmJ
— Laurence Tribe (@tribelaw) January 30, 2020
Anything the president does to keep his office is in the national interest, Dershowitz testifies https://t.co/HFvTB6I3Xf
— Maggie Haberman (@maggieNYT) January 29, 2020
What these breathless accounts of Dershowitz’s words have in common is just how wrong they are. Let’s look at the quote in question. He says, “If the president does something that he thinks will help him get elected, in the public interest, that cannot be the kind of quid pro quo that results in impeachment.” The context here matters a lot, and in fairness Dershowitz could have been a bit clearer. In fact, he did clarify his remarks in the evening session of senators’ questions.
Prior to this selection of his statements, Dershowitz laid out three types of motives the president could have had for his actions. First, one purely and solely concerned with the national interest, second one in which his motive also includes his electoral interests, and third one in which personal gain is his only motivation. In the quote in question, he was talking directly about that second possibility, which he would later describe as “mixed motives.”
This is extremely important because Dershowitz is predicating his argument that the president may act in the interest of his own electoral chances but only if he believes those actions to be in the broader national interest. Dershowitz is not saying that the president could kill a political rival and it wouldn’t be impeachable if he thought that killing was in the national interest. First of all, murder is a crime, and there is no crime alleged in the impeachment, which lies at the heart of Dershowitz’s broader constitutional argument.
What Dershowitz is saying is that when a president is faced with a lawful policy choice that may benefit him politically, he is not barred from making that choice on the basis that it could help him. Politicians do this all the time.
What is telling about the entire way in which Dershowitz has been covered is that the same legacy media that has gotten everything imaginable dead wrong for three years can’t wait two minutes before tweeting and pushing stories that give the American people an incredibly poor analysis of what he is really saying.
Moreover, the hyper-focus on Dershowitz’s argument makes no sense unless one’s purpose is to paint the president’s case in the worst possible light. While the other attorneys are making more positive arguments, saying the president did nothing wrong, Dershowitz is making a more obscure argument, one ripe for politically motivated “confusion.”
When Dershowitz’s strategy was announced, I wrote, “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.”
Turns out that was pretty spot on. Dershowitz could have done a better job making his argument, yesterday and should be careful to do so in the future. But the news media should also stop twisting his words to make it seem like the president and his team are saying things they demonstrably are not.
