Each of us had a first reaction when hearing Trump sex worker Alan Dershowitz respond to a Ted Cruz question with the answer “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.”
You, HL reader, had your first reaction. The visible shudder of some Republican senators signaled theirs. HL’s reflex sent him to his favorite Marlon Brando movie line. No, not that one, nor that. The one from The Freshman when playing Carmine Sabatini (a dead ringer for Don Corleone) he tells NYU student Clark Kellogg (Matthew Broderick) “I didn’t miss nothing” after touring the Greenwich Village campus and its cruddy dorms. For half a century HL had bemoaned rejection by Harvard Law School. But all that remorse departed with Cruz’ (Harvard Law Class of 2003) question and response from the youngest full professor in the law school’s history.
HL matriculated at another damn good law school and has taught at a third. And his learned profession obliges him to provide an explanation beyond merely reporting these first reactions, reflexes and tropisms from Republican senators.
The lesson in law must be prefaced with brief restatement of what we’ve said before and most recently in HL 82. Alan Dershowitz is a constitutional scholar of considerable acclaim, backed by results and some of those in law’s highest calling. We were at SCOTUS on another case the day Dershowitz’ brilliant, unorthodox and rule breaking pro bono argument in Tison v. Arizona saved two African-American men from execution for crimes committed when they were 19 and 20 years old. Dershowitz has read the Constitution but his interpretation of Article II and the part of Article I dealing with impeachment leads him to essentially the same conclusions reached by client Trump – who has not read it. That interpretation is “I have an Article II where I have the right to do whatever I want as President.”
Dershowitz’ substantial agreement with that assertion of absolute power was first revealed when Trump began pardoning criminal scumbags like Sheriff Joe Arpaio and war criminals like Eddie Gallagher and Trump started sending crude signals to potential witnesses against him in both impeachment inquiries. If they pleaded to their crimes (without implicating him) he would make sure they served no time(s).
Dershowitz interprets the pardon power as absolute. Regardless the executive’s motive, issuing a pardon cannot constitute a crime let alone be valid basis for impeachment.
Professor Dershowitz’ absolutist interpretation of the pardon power is matched by an equally unlimited interpretation of a president’s authority to act when they deem it in the nation’s interest. Dershowitz is not saying that conditioning release of $390 million in appropriated aid on performance of the “favor” of Zelensky killing Joe Biden would not be impeachable. “Though” he has taken the position that had Trump asked that favor and Zelensky delivered, Trump could then pardon him for the federal crime. Dershowitz maintains that such a pardon could not be a ground for impeachment nor the basis of any criminal prosecution.
So much for the law and lawyer Dershowitz. Stuff like this moved Shakespeare to have Dick the Butcher say, “first thing we do, let’s kill all the lawyers” and moved America’s own poet, Carl Sandburg, to write “The lawyers Bob, know too much. They are chums of the books of the old John Marshall. They know it all, what a dead hand wrote, a stiff dead hand and its knuckles crumbling. . . The lawyers know a dead man’s thoughts too well.”
The hope here is that when the Republican senators get their way, they also get their wish; the people’s verdict on all this in November.