On Wednesday, the impeachment trial of President Trump moved to a new phase in the Senate. After hearing hours of presentations in which the House impeachment managers argued for the removal of Trump from office and his own legal team rebutted those charges, senators were at last granted the ability to ask questions directly to either side.
Over the course of two responses to those questions, Trump’s legal team made a remarkable claim. First, that if an action includes any element of public interest, it can’t be impeachable under the terms set by the House. And, second, if Trump thinks that his own reelection is in the public interest — which he certainly does — that’s a valid claim.
Trump attorney Patrick Philbin made the first point in response to the first question posed by Senate Republicans. He argued that the report from the House Judiciary Committee established that there must necessarily not be any legitimate public purpose to Trump’s requests from Ukraine’s government.
“If there’s both some personal motive but also a legitimate public interest motive,” Philbin said, “it can’t possibly be an offense because it would be absurd to have the Senate trying to consider, ‘Well, it was it 48 percent legitimate interest and 52 percent personal interest? Or was it the other way? Was it 53 percent and 40 —’ You can’t divide it that way.”
“They recognize that to have even a remotely coherent theory, the standard they have to set for themselves is establishing there is no possible public interest at all for these investigations,” he continued. “And if there is any possibility, if there is something that shows a possible public interest and the president could have that possible public interest motive, that destroys their case.”
There are some nuances to that, including the pointed distinction between the president having a possible public interest motive and, as Philbin articulated it, that the president could have that motive. Philbin argues there that if a public interest could be ascribed to Trump’s actions, he can’t be impeached. That itself is a remarkable claim.
In his response to Philbin, lead impeachment manager Rep. Adam B. Schiff (D-Calif.) rejected the idea that the House case necessitated an entirely personal benefit. Remember what’s at issue in the trial: Trump’s withholding of aid to Ukraine and denial of a White House meeting to Ukraine’s president, allegedly in the hopes of pressuring Ukraine into launching investigations of political use to him personally.
“If any part of the president’s motivation was a corrupt motive, was a causal factor in the action to freeze the aid or withhold the meeting, that is enough to convict,” Schiff said. “It would be enough to convict under criminal law.”
To that latter point, stealing money to give to the poor is still illegal.
Philbin’s argument, though, set an important floor for behavior that another member of Trump’s team, Alan Dershowitz, used as the basis for a remarkable argument.
Dershowitz admitted that there were situations in which personal benefit was impeachable, such as when a president benefited financially from his decision-making. But more broadly, Trump could have been acting in the public benefit simply by wanting to be reelected.
Here was Dershowitz’s argument to the assembled senators.
“Every public official that I know believes that his election is in the public interest. And mostly, you’re right. Your election is in the public interest. 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. . . .“The house managers . . . never allege that it was based on pure financial reasons. It would be a much harder case if a hypothetical president of the United States said to a hypothetical leader of a foreign country, ‘Unless you build a hotel with my name on it and unless you give me a million-dollar kickback, I will withhold the funds.’“That’s an easy case. That’s purely corrupt and in the purely private interest.“But a complex middle case is: ‘I want to be elected. I think I’m a great president. I think I’m the greatest president there ever was. And if I’m not elected, the national interest will suffer greatly.’ That cannot be an impeachable offense.”
In other words, if Trump thinks the United States would benefit from another four years of Trump, his motivation isn’t his own personal benefit but, instead, the public good. Clearly Trump thinks this, by the way, given frequent assertions along these lines.
It’s amazing what I’ve done, the most of any President in the first three years (by far), considering that for three years I’ve been under phony political investigations and the Impeachment Hoax! KEEP AMERICA GREAT!
— Donald J. Trump (@realDonaldTrump) January 28, 2020
Note the tagline there: “Keep America great” does seem to suggest that Trump thinks his reelection is in the public benefit.
According to Dershowitz, this alone constitutes the sort of “possible public interest motive” that, per Philbin, makes it impossible to legitimately impeach the president.
It’s an obviously ridiculous argument. For example, soliciting foreign assistance for an election is a violation of federal law. Trump’s allies argue that his requests to Ukrainian President Volodymyr Zelensky was something other than such a solicitation, but it’s easy to see how, under slightly different circumstances, that line would be much brighter. Had Trump, for example, asked Zelensky to have his eventual 2020 Democratic opponent arrested and detained — an obvious solicitation of benefit — it’s a clear violation of law. But Dershowitz would argue that it’s inherently unimpeachable, since all Trump wanted was to be reelected for the benefit of the country.
It’s what a better lawyer might call an inadvertent reductio ad absurdum. Dershowitz is extending the president’s leeway to such a degree that it becomes hard to take seriously his claims.
But we are again reminded that the audience to which Trump’s lawyers are trying to appeal isn’t only that group of senators in the room. There’s also the man up Pennsylvania Avenue who’s watching on television from the White House. To that man, Dershowitz’s argument probably made perfect sense.
