Media pundits and partisan politicians have been deliberately distorting the argument I made in the Senate impeachment trial of President Trump this week. Taking advantage of the fact that most of their own readers or viewers did not actually watch the Senate question and answer session, they have mischaracterized my argument as if I claimed that a president who believes his reelection is in the national interest can do anything.
I said nothing like that, as anyone who heard what I said can attest. What I said was in response to the argument of the House managers, which was that any action by a politician motivated in part by a desire to be reelected was, by its nature, corrupt. Moving to my response, I listed three broad categories of relevant motive, which are pure national interest to help the military, pure corrupt motive to obtain a kickback, and mixed motive to help the national interest in a way that can also help a reelection effort.
I said the third motive was often the reality of politics, and helping your own reelection effort cannot by itself necessarily be deemed corrupt. I laid out, as an example, the decision of President Lincoln to send Indiana troops home from the battlefield so they would vote for his party in a state election. He genuinely believed that a victory for his party in Indiana was essential to the war effort, but he also knew it would help him politically.
I laid out another hypothetical in which President Obama promised to bomb Syrian military targets if President Assad used chemical weapons. He broke his promise. What it if turns out that one reason he broke his promise was that his political advisers warned him that bombing Syria would lose him votes among the hard left? My point was that these are complex issues and the Framers did not intend impeachment for mixed motive decisions that contain an element of personal partisan benefit.
Anyone watching my answer would know that it was in response to the claim by the House managers that any electoral benefit constitutes an impeachable quid pro quo. I pointed out how open ended that argument is since most politicians truly believe their reelections help the national interest. I never said or implied that any candidate could do anything to reassure his or her reelection, only that seeking help is not necessarily corrupt, citing the examples of Lincoln and Obama. My critics now have an obligation to respond to what I said, not create straw men to attack.
I am certain that the senators and those other Americans who watched the question and answer session understood the point I was making. Just because a politician has mixed motives for his or her actions, including a desire for reelection which he or she believes is in the national interest, does not prove that politician is corrupt. Even Democrat Adam Schiff, the lead House manager, understood it and responded that there are cases in which mixed motives can be criminal if one of the motives was corrupt.
I am sure those talking heads who mischaracterized my argument knew what they were doing. They heard my Lincoln and Obama examples but, instead of responding to those on the merits, which they were unable to do, they decided to create an easy but false straw man which they could mock. The straw man is that I argued that Trump could do anything he wanted as long as he believed his election was in the national interest.
Pundits and tweeters have given preposterous examples from kidnapping an opposing candidate to bribing voters and rounding up Democrats to tampering with ballot boxes, all of which are criminal, as were many of the impeachable offenses of President Nixon. My point was that if a president does something legally within his authority, like withholding aid, sending soldiers home, or breaking a promise to bomb Syrian military facilities if they use chemical weapons, the fact that he was motivated in part by his desire for reelection does not in itself constitute impeachable conduct.
Under the theory of motivation, the theory to which I was responding to the House managers, Joe Biden, who I admire and like, would be guilty even if a small part of his motivation for having a Ukrainian prosecutor fired was to protect his son or the Ukrainian company that appointed his son as a paid board member. I believe Biden is a patriot who cares deeply about the national interest, but he also cares deeply about his own family. Under the dangerous theory of the House managers, he would have to be psychoanalyzed to determine the role each motive may have played in an entirely lawful action. This broad theory takes us down a dangerous road.
Mixed motives are always matters of degree and, if they become a criteria for impeachment, they can be used selectively against certain candidates and not others. That is the danger to which I was alluding. But instead of reporting this danger the media could not resist deliberately distorting and mischaracterizing it. This deliberate distortion is a symptom of our times. It also explains why dialogue and debate about controversial and interesting ideas are becoming much more difficult in our divisive age.
Alan Dershowitz, professor emeritus at Harvard Law School, is a member of the legal team for President Trump in the impeachment trial. He is also the author of “The Case Against the Democratic House Impeaching Trump.”