30 January 20
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30 January 20
FOCUS | Alan Dershowitz for the Defense: L'Etat, C'est Trump
Susan B. Glasser, The New Yorker
Glasser writes: "Dershowitz had something larger and more profound to say: Donald Trump has the power to do just about anything he wants to do, and there's nothing that the U.S. Senate can or should do about it."
Susan B. Glasser, The New Yorker
Glasser writes: "Dershowitz had something larger and more profound to say: Donald Trump has the power to do just about anything he wants to do, and there's nothing that the U.S. Senate can or should do about it."
n hour into the Senate trial of Donald John Trump on Wednesday, the emeritus Harvard law professor Alan Dershowitz came to the floor to answer a question from a former Harvard law student, Senator Ted Cruz, of Texas. In theory, it was a question that went to the heart of the impeachment case against Trump, about the President’s imposition of a quid pro quo on military aid to Ukraine and whether his motivations mattered. Dershowitz had something larger and more profound to say, however: Donald Trump has the power to do just about anything he wants to do, and there’s nothing that the U.S. Senate can or should do about it.
For more than a week, House managers prosecuting the impeachment case against Trump have argued that the Senate’s failure to convict him would make Trump an unaccountable leader; in effect, a dictator or a king. When Dershowitz spoke, it was if he completely agreed with them. Two days earlier, Dershowitz had told senators that Presidential “abuse of power” should not be considered an impeachable offense under the Constitution. On Wednesday, he took that further—much further. “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,” he argued. Dershowitz was offering Trump—and all future Presidents—a free pass. His argument seemed unbelievable: as long as the President thinks his reëlection will benefit the country, he can do anything in pursuit of it without fear of impeachment. Really?
Trump has already said that he considers himself empowered by Article II of the Constitution “to do whatever I want.” Video of this extraordinary moment has been played, repeatedly, by House managers in the trial. They clearly saw it as a damning statement made by a power-grabbing President—and then the President’s counsel, in effect, endorsed Trump’s power grab on the floor of the Senate. So long as Trump believes himself to be acting in the national interest, Dershowitz said, he can do whatever he wants. If the past three years have taught us anything, it is that Trump is a President who is comfortable conflating his own interest with the national interest. L’état, c’est Trump.
Were the senators supposed to take this seriously? Was it all just a show for the loyal Trump viewers on Fox? (That, after all, is how Dershowitz landed his Trump gig in the first place—going on the President’s favorite programs night after night to defend him.) After Dershowitz’s rant, his co-counsel Jay Sekulow launched into a long answer that was largely unrelated to the impeachment case surrounding Trump’s Ukraine scheme. He mentioned the 2016 Steele dossier, about Trump’s alleged ties to Russia, and Fusion GPS, the opposition-research firm that funded it. He talked about the F.B.I. and surveillance of the Trump campaign. The conspiracy theories Sekulow offered, though, didn’t really matter any more than Dershowitz’s outlandish constitutional theories did. The Senate math is the Senate math: Trump’s side has the votes to acquit him, and the Senate is running out the clock on the impeachment trial before the President’s inevitable acquittal by a Republican majority. Sekulow and Dershowitz might as well have been reading the phone book.
Their arguments on Wednesday came during the first day of Question Time, a unique aspect of the Presidential impeachment proceeding in which the Senate has up to sixteen hours, divided equally among the parties, over two days, to send written questions to the duelling legal teams, to be read aloud by Chief Justice John Roberts. Like everything else about the Senate trial, Question Time turned out to be a largely partisan box-checking exercise, with Democrats asking questions of the Democratic House managers and Republicans asking questions of the President’s legal team. There was no dialogue or debate between the two sides, or even a genuine effort to poke holes in each other’s arguments; these were, for the most part, parallel conversations. In the first two hours, there were only two questions that broke from the pattern of each party talking to itself. Later in the day, Cruz and several other senators crossed the partisan divide, but only to ask House managers to confirm identifying details about the intelligence-community whistle-blower whose complaint triggered the impeachment inquiry last fall. The House managers refused.
The arguments on the floor, to the extent that there was a running theme, revolved around the one remaining unsettled question: Will Senators hear testimony and evidence that Trump has blocked from Congress, most notably from John Bolton, the former Trump national-security adviser who has, according to the Times, written a devastating account of the President admitting that he was withholding millions in security aid to Ukraine on the condition of politically beneficial investigations? Bolton says that he is prepared to testify to the Senate about it, and there would seem to be no more relevant witness, considering that is precisely the allegation in the first article of impeachment. But Trump and his allies in the Senate G.O.P. are pushing ahead to vote for Trump’s acquittal as soon as Friday, without Bolton’s testimony—or anyone else’s not already in the House record. The managers, not surprisingly, made this the focus of many of their answers. “Don’t wait for the book,” Adam Schiff, the lead House manager, said. Have Bolton testify, he begged the senators. “You can erase all doubt.”
Before the senators’ questions began on Wednesday, I sat down with Zoe Lofgren, one of the House managers prosecuting the case against Trump. The California Democrat has the distinction of having participated in all three impeachment proceedings of our lifetime—as a House Judiciary Committee staffer during Richard Nixon’s impeachment process; as a House Judiciary member during Bill Clinton’s impeachment; and now as a House manager during Trump’s. She told me that the House managers had been working in the Capitol on Sunday when the Times story about Bolton’s forthcoming book was published. “The first words out of my mouth were ‘yikes,’ ” she recalled. “I just thought, Wow, that is a game-changer. That’s like when Nixon admitted everything,” she added, “and he had to announce his resignation.”
Of course, that’s not what happened this time. Not only is Trump not resigning but, in the three days since the Bolton revelations were published, the momentum appears to have shifted in the Senate Republican Conference—against hearing Bolton or any other witnesses. In the corridors off the Senate floor, Cory Gardner, of Colorado—a Republican facing a tough race this fall, who was previously seen as a possible swing vote on the issue—said that he was against witnesses. Republican leaders told reporters that they were prepared to move quickly after a vote against witnesses on Friday to a final vote on acquittal. “The momentum is clearly in the direction of moving to final judgment on Friday,” John Barrasso, of Wyoming, told reporters.
It turns out, once again, that Republican senators are more afraid of Donald Trump than of voters, who continue to strongly favor witness testimony, according to every public poll. Just in case the vote counts weren’t as solid as they seemed to be, the arguments on the floor seemed aimed at scaring any wavering Republicans back into line. Calling Bolton, Trump’s lawyers warned, would not be the end of it. They might call the former Vice-President Joe Biden, or Schiff himself, or the whistle-blower. The Senate “will be effectively paralyzed for months on end,” a Trump White House lawyer, Patrick Philbin, told the senators. “This would drag on for months.”
But will it? On Thursday, the senators’ questions will continue. On Friday, the senators will finally have to do what they have so far avoided, which is vote. Until then, it’s all just talking.
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