Trump’s Lawyers’ Impeachment Defense Will Reshape the Office of the President

Donald Trump has ruled by emotion, rage, and whim. In the Senate, his lawyers’ defense of his actions could enable similar behavior from presidents to come.

Dershowitz raises his arms while speaking at a mic before the Senate.
Attorney Alan Dershowitz addresses a question from senators during the impeachment trial of President Donald Trump in D.C. on Wednesday. U.S. Senate TV/Handout via Reuters

It has long been clear to anyone paying attention that there is no discernible daylight to be found between Donald Trump’s immediate feelings as a person and the actions he takes in the role of president. When he is angry, he rage-tweets; when he doesn’t like a federal program, he summarily cancels it; when he is mad at Iran, he kills a guy; and when he wants to intimidate a witness midtestimony, he threatens her. It’s not just that he cannot disentangle his own interests from those of the office of the president or the greater interests of the country; it’s that we are all at the constant mercy of his feelings and his responses to those feelings. That’s all “policy” really is anymore: things he does in response to stuff he feels. His lawyers spend the bulk of their time trying to find legal doctrine to support his spontaneous claims that he can fire anyone he hates, build anything he wants, assassinate anyone who pisses him off, withhold any of the congressionally appropriated aid he likes, and recall any foreign ambassadors, even for corrupt reasons. The rest of us simply white-knuckle our way along the careening roller coaster of his tantrums, vendettas, and lies. What we have experienced over the past three years has been nothing more and nothing less than what it is like to be ruled by one man’s self-obsessed, mercurial feelings.

That means that we also now occupy a constitutional regime in which the entire sweep and scope of Article 2 power is reconfigured to allow for this—to permit him, as he famously put it, to “do whatever I want as president.” What we’ve watched during this impeachment trial is the constitutionalization of this behavior. And because the president’s lawyers can no longer defend against the facts of his behavior, they have again attempted to reconfigure the law to allow it. That’s why Alan Dershowitz’s chilling defense of the president’s actions was so arresting on Wednesday, when he offered up twin claims about the president’s state of mind in corruptly seeking to withhold military aid to Ukraine unless the country helped him damage a political rival in advance of the 2020 election. Much attention has been paid to the frankly terrifying assertion that a president cannot be impeached for doing anything to advance his electoral fortunes, since he must rightly believe that this is in the best interest of the country. (Dershowitz now claims that his comments have been “distorted,” but he has offered no correction to the record. Additionally, Patrick Philbin, another Trump lawyer, made the same point.)

“Every public official that I know believes that his election is in the public interest,” he said, in the English language, on the Senate floor. “And 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 the beclowned criminal law expert. Constitutional law experts across the spectrum quickly reacted in horror. What Dershowitz is suggesting is that the president can investigate rivals, close polling places, start wars, invite foreign election interference, extort anyone, dangle pardons, and essentially do absolutely anything else he believes will win him an election, and that none of this can be impeachable. As Aaron Rupar correctly observed, in a week, the Trump defense torqued from “no quid pro quo” to “he did it, so what.” Indeed, that will be the basis for the argument that we need no more witnesses. John Bolton, if called, will merely confirm that the Ukraine scheme happened. But so what? If the president does it in a quest for reelection, it’s fine. The implications for future presidents are breathtaking.

But the second part of Dershowitz’s defense is almost as terrifying as his “L’état, c’est moi” claim about limitless power to get oneself reelected. That was his related assertion that the president’s mental state is so vastly and multifariously unknowable that nobody on the Senate floor dare attempt to comprehend the complexity of the Ukraine scheme. To explain this, Dershowitz described Abraham Lincoln’s mindset during the Civil War:

The president a) believed it was in the national interest, but b) he believed his own election was essential to victory in the Civil War. Every president believes that. That is why it is so dangerous to try to psychoanalyze a president, to try to get into the intricacies of the human mind. Everybody has mixed motives, and for there to be a constitutional impeachment based on mixed motives would permit almost any president to be impeached.

To be precise, Dershowitz is not just claiming that anything a president does to get reelected is in the national interest; he’s also claiming that it’s impossible to separate out a president’s mixed motivation. Thus, given the great ineffable wonder that is Donald Trump’s reasoning process and unknowable mind, he cannot be impeached even if he was 99 percent extorting Ukraine for electoral goals and only 1 percent doing so for the national interest. As long as that 1 percent is there, it’s fine. But also unknowable.

Professor Randall D. Eliason pointed out in Thursday’s Washington Post that Dershowitz’s “who can know the vagaries of the human mind” defense is almost as insane as the claim that presidents can do whatever they like to win an election because they believe it’s in the national interest. Virtually all of criminal law turns on probing mens rea, or mental state. As Eliason notes, “it’s usually the key issue in white-collar offenses such as bribery or obstruction of justice, which are embodied in the text of the articles of impeachment. In such cases, proof of what was in the defendant’s mind is usually what distinguishes an otherwise lawful act from a criminal offense.” Claims that we cannot determine Trump’s motivation because we cannot trust the president’s statements, tweets, and reports of his behavior to illuminate why he was refusing to give aid to Ukraine are absurd. As Eliason puts it, “proof of state of mind is not only commonplace, it’s indispensable.” It’s how the law works. Dershowitz’s argument essentially boils down to “well, this president is above mens rea.”

But claims that Trump’s byzantine state of mind dare not be probed by mere jurists is old hat now. Trump’s defenders made the same absurd “psychologizing” claims in the travel ban cases, in order to urge courts to disaggregate the president’s open boasts that his travel ban was born of anti-Muslim animus from the overtly anti-Muslim executive order he eventually signed. “Don’t engage in amateur psychology of this valorous institution that is the presidency” is a party trick deployed to cleanse Trump’s bad acts in court, no matter the act and no matter the court. Lindsey Graham previewed this argument before Dershowitz made it cool when he insisted last week that whatever Trump was doing around Ukraine, bribery, and Joe Biden was fine because “from the president’s point of view, he did nothing wrong in his mind.” It’s not just that if the president does it to get reelected, it’s lawful; it’s also that if the president believed it was lawful, there’s nothing left for jurors to probe.

Republicans in the Senate don’t have to accept Dershowitz’s laughable claims about the president’s mental state being too complicated to parse. There is a simple recourse available to them, which is to call witnesses who spoke to Trump about the acts in question. That they have instead allowed themselves to be led through the looking glass into “we believe he believes it was legal” is nothing less than the constitutionalization of one man’s boundless narcissism.

Let this serve, at minimum, as a reminder that in all the ways we have degraded and demolished constitutional norms in this era, the most egregious move might have come with this defense. The combination of “L’état, c’est moi” with “Who among us dares probe what that moi is thinking” is not just fatal to what is left of constitutional checks and balances, but also to the rule of law. Whatever authoritarianism means, it has to encompass the idea that the executive can do whatever he wants, for whatever reason, and cannot be second-guessed.

We’ve grown so accustomed to this fact: that the president’s moods and whims and fleeting fancies are what rule us, that we now assume his moods and whims are the law. They are also now presumed exculpatory in the courts and are what make him somehow immune to any and all oversight in the impeachment process or by the judicial branch. Somehow, we’ve forgotten that the Framers of the Constitution stupidly believed that they were creating a government that transcended the individual moods and passions of the moment, and that the original architecture they laid out was about more than just a shrine to one man’s belief that he is the law, and also above the law.