The Real Problem With Alan Dershowitz's Position on Quid Pro Quos and Impeachment

Trump's lawyer did not say a president "can do anything" to get re-elected, but he did say that goal cannot count as a corrupt motive.


Harvard law professor Alan Dershowitz, one of the attorneys representing Donald Trump in his Senate trial, complains that his critics are misrepresenting his position on quid pro quos and impeachment. "They have mischaracterized my argument as if I claimed that a president who believes his reelection is in the national interest can do anything," Dershowitz writes in The Hill. "I said nothing like that."

It is true that Dershowitz never said a president "can do anything" to get re-elected. He made it clear, for example, that a president who commits crimes to get re-elected—Richard Nixon, say—could be impeached. But Dershowitz's comments during Wednesday's question-and-answer session went further than he admits by implying that the desire to stay in office cannot count as a corrupt motive that renders otherwise legal conduct an impeachable abuse of power.

Here is the question to which Dershowitz was responding: "As a matter of law, does it matter if there was a quid pro quo? Is it true that quid pro quos are often used in foreign policy?"

Dershowitz rightly responded that a quid pro quo involving a foreign government is not necessarily improper. If a president conditioned aid to Israel on a halt to settlement activity or conditioned aid to the Palestinian Authority on an end to payments for the families of terrorists, he said, "there is no one in this chamber who would regard that as in any way unlawful. The only thing that would make a quid pro quo unlawful is if the quo were in some way illegal."

That last part is tautological, of course, and it elides the question of whether a president's conduct can be impeachable even if it is not illegal. But Dershowitz conceded that the motive for a quid pro quo matters. "There are three possible motives that a political figure can have," he said. "One, a motive in the public interest, and the Israel argument would be in the public interest; the second is in his own political interest; and the third, which hasn't been mentioned, would be in his own financial interest, his own pure financial interest, just putting money in the bank."

As an example of a quid pro quo motivated by personal financial interests, Dershowitz described "an easy case" in which "a hypothetical president" tells a foreign government, "Unless you build a hotel with my name on it and unless you give me a million-dollar kickback, I will withhold the funds." The motive in that situation, he said, "is purely corrupt and in the purely private interest." Such a quid pro quo also would clearly violate the federal bribery statute that makes it a crime for a U.S. government official to solicit "anything of value…in return for…being influenced in the performance of any official act."

By contrast, Dershowitz said, when a president offers a quid pro quo "in his own political interest," that is "a complex middle case," because the president might reason this way: "I want to be elected. I think I am a great president. I think I am the greatest president there ever was, and if I am not elected, the national interest will suffer greatly."

In his trial comments, his piece in The Hill, and his self-defense on Twitter, Dershowitz emphasized cases involving "mixed motives": The president does something he believes is in the national interest while recognizing that it will also benefit him politically. Dershowitz warned that it would be dangerous for Congress to constantly parse the president's motives in such situations with an eye toward impeaching him, since so many decisions fall into that category. "Everybody has mixed motives," he told the senators, "and for there to be a constitutional impeachment based on mixed motives would permit almost any President to be impeached."

But the articles of impeachment do not allege that Trump had mixed motives when he pressured the Ukrainian government to announce an investigation of former Vice President Joe Biden. While Trump claims he was concerned about rooting out official corruption in Ukraine, the Democrats say, that is merely a post hoc cover for his true motive: discrediting the candidate he viewed as the biggest threat to his re-election. Dershowitz's argument that a president might sincerely and legitimately equate his re-election with the national interest suggests that the Ukraine quid pro quo was perfectly proper even if Trump's sole aim was tarring a political rival.

"Every public official whom I know believes that his election is in the public interest," Dershowitz said. "Mostly, you are right. Your election is in the public interest. 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."

Dershowitz implied that a quid pro quo can be impeachable only if it is "unlawful." According to the Government Accountability Office, Trump's freeze on military aid to Ukraine was unlawful, since it violated the Impoundment Control Act. And as George Mason law professor Ilya Somin has noted, Trump's quid pro quo arguably violated a federal extortion statute. That law applies to someone who "knowingly causes or attempts to cause any person to make a contribution of a thing of value (including services) for the benefit of any candidate or any political party, by means of the denial or deprivation, or the threat of the denial or deprivation, of…any payment or benefit of a program of the United States" if that payment or benefit "is provided for or made possible in whole or in part by an Act of Congress."

While the articles of impeachment do not allege violations of these or any other laws, Dershowitz concedes that "criminal-like behavior akin to treason or bribery" is impeachable even if it's not "a technical crime with all the elements." Defending his position on Twitter yesterday, he again implied that impeachment does not require "unlawful" conduct. "A president seeking re-election cannot do anything he wants," he said. "He is not above the law. He cannot commit crimes. He cannot commit impeachable conduct." The category of "impeachable conduct," in other words, is broader than the category of "crimes."

That means some abuses of presidential power, such as a pre-emptive self-pardon or politically motivated criminal investigations, can be grounds for impeachment even if they are technically legal. Motives matter. But if a politician's desire to keep his job counts as a legitimate motive because he believes his re-election is "in the public interest," noncriminal abuses of power aimed at avoiding electoral defeat can never be impeachable. That seems to be Dershowitz's position, and it means that Congress has no authority to remove a president who abuses his powers so he can continue to exercise those powers.

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  1. Poor Sullum.

    Trump is not being removed from office and is more popular by the day.

    1. Sullum seems incapable of dealing with complex thoughts and ideas.

      1. Orange Daddy Defense Power Rangers Assemble!

        1. Now you know why everyone laughs at you.

        2. Remember when you said earning a paycheck was receiving a handout? Fucking hilarious.

          1. I was referring to John, who works for the federal government. You can’t possibly be so dense as to think I was talking about any job. And those weren’t even the words used.

            1. Well, you once defended Antifa as being just another protest group and minimized their constant acts of violence, so you’re pretty dense

            2. Sure you were. Sure you were.

        3. I’m going to use that

    2. Of all the ‘lawyers’ during the ‘impeachment trial’, Dershowitz has been the most reasoned, consistent and coherent. I don’t see where Mr. Sullum is coming from. After all, Dershowitz is no fan of either Republicanism or President Trump. He is a fan of the Constitution and his presentation shows that.
      Maybe Mr. Sullum could take a hint.

      1. You’re assuming that Reason’s indifference to the Constitution is inadvertent. That seems unlikely, considering their leftward slant and hostility towards pro-American nationalism.

        They’re globalists. To them, the Constitution is just as much of a nuisance as it is to Democrats when it gets in the way of what they want…like getting Donald Trump out of office.

        1. Nationalism is anti-American

          1. Lol
            Leftism is really, really stupid

    3. So do we now have mind readers in the Democrat party? How the h*ll do they know what Trump was thinking? But this question does not even come into the fray. The phone call no where mentions the name Biden, or any type of qui pro quo. It does mention “Crowd Strike”. So where is the quid pro quo? Some one please answer the question.

      1. “Biden” appears 3 times on the call from my quick glance. Once referring to Hunter and twice for Joe. Though all 3 were in back to back sentences and after he keyed in on Crowdstrike


          As a matter of fact, the Ukrainians have gone out of their way to say they were NOT pressured & were not even thinking of it!…All the crap the House Dems put forth in this flimsy case were just innuendo, hearsay & personal opinions of what our foreign policy should be! NO FACTS AT ALL THAT PROVED THEIR CASE!

    4. Sounds made up.

      I haven’t seen his approval numbers rising.

    5. Trump isn’t “more popular by the day.” His ratings remain stuck in the same place.

  2. “But Dershowitz’s comments during Wednesday’s question-and-answer session went further than he admits by implying”

    So, he didn’t actually make the argument, you’re just TDSing it into existence.

  3. “Prove your motives are pure to our satisfaction or accept your guilt”.

    Shampeachment was, of course, done with nothing but the purest motives.

    1. Sollum almost seemed to be making some good points until he got to that portion. Not quite certain, but doesn’t that argument require someone to prove their innocence rather then the prosecution (the House) proving their guilt?

      1. It is, of course, a given that the left has pure motives. Senators running for President taking part in Impeachment? Na, no self interested accounting for the election here.

        1. Right. That’s why they refused themselves.

          Oh, wait….

            1. Maybe it is like boxers, no sex the night before a fight, including masturbation. Maybe that is how they refused themselves? Though the image of Sanders, Warren et al jacking and jilling off just made me throw up a little bit in my mouth.

              1. I think at their age, politics *is* their form of masturbation. If it’s more literal, I don’t want to know about it.

                1. Democrats, going back to before the Civil War, sure put the “master” in masturbation.

      2. They did prove his guilt. He’s admitted the underlying conduct, and the chronology of events shows his only rationale was reelection in 2020.

        1. No. It doesn’t. The earliest records of Trump talking about this were from April 2018. That’s over a year before Biden announced his candidacy.

          In fact, if anything, the timeline indicates that this was an investigation into the 2016 election. Perhaps you can even say vengeance by Trump for the Russia investigation. This also agrees with the fact that he was talking about Cloudstrike immediately before in the transcript, clearing looking into the 2016 interference.

  4. Sullum in recent years Congress has abdicated its role in foreign policy to the President who now almost unilaterally makes foreign policy literally everything he does is a quid pro quo or transactional. IE he gets something for something as that is how trade and foreign policy work. All congress has to do is get that power back and they can very easily do this by passing laws and actually enforcing their power of the purse. Over the years really since WW2 the senate and house have basically given carte blanche to the executive on nearly all affairs, the fact that they now care about something which simply amounts to a corruption investigation which as I understand it Congress actually explicitly gives the executive branch powers in this particular case. Honestly the biggest scandal here is the fact we are giving billions in aid to the fucking Ukraine at all.

    1. There is no abdication there. Foreign relations is a task of the executive. Congress merely ratifies agreements the executive puts forth.

  5. Sollum almost made a decent argument here, and seems on the verge of some epiphany. Maybe he saw the NBC/WSJ poll today that has Sanders ahead, and the polling showing Sanders ahead in both Iowa and New Hampshire (not to mention way ahead in California, the largest collection of delegates, comfortably enough ahead he could conceivably capture all the delegates from that state). Maybe he is having an “oh shit” moment? Probably not but it is possible.

    1. “The Libertarian case for Sanders”

      He promises to rule by executive decree and eliminate any law we dislike. The end.

      1. The Koch / Reason libertarian case for Sanders is simple — he’d be better than Drumpf on immigration and abortion.


        1. Whether to vote left, and preserve and expand most personal freedoms, or right, and preserve most economic freedoms, is a constant concern for libertarians.

    2. The 64 dollar question on individual state Democrat candidate polls is: where do Biden’s delegates go? Because he’s winning most of the polls, albeit not the new ones in IA and NH.

      If he stays in, he should get the nomination. But he’s likely not going to stay in. So where does his 25-30 percent support go? I don’t think it goes to Bernie. Warren? Bloomberg? Buttigieg? Klobuchar?

      1. The interesting question to me is, “Who gobbles up the smaller fish after Iowa and New Hampshire?” The little guys will give up first.

        I suspect the Yang vote goes to Sanders.

        The Buttigieg and Klobuchar vote probably goes to Biden.

        Advantage: Biden

        1. I think a brokered convention is becoming much more likely.

          1. And Bloomberg hasn’t helped with his deep pockets.

            Can you imagine Bloomberg deciding to be somebody’s Vice President or Secretary of the Treasury? If he can’t be President, he isn’t conceding.

            1. Why arent people yelling emoluments for Bloomberg yet?

              1. Where is the left screaming the rich shouldn’t be able to dump unlimited amounts of their own money into their own election?

                1. This is a pretty good new satire account

          2. That could be entertaining. Or terrifying.

  6. I don’t think I’d dispute any of this with Sullum, but, I would argue, the legality of the impeachment is secondary to propriety in terms of this being an election year.

    It takes two-thirds of the Senate to convict, and one third of the Senate turns over every two years. Class 2 needs to face the voters this November, and regardless of whether the president’s motive of seeking reelection mitigates a quid pro quo, the voters can vote for or against those senators for any reason they like–including because they voted to seek more witnesses in the impeachment hearing.

    There was one Democrat member of the House who changed his party to Republican rather than vote for impeachment and face his constituents–because his constituents voted for Donald Trump in 2016. Because you fear the wrath of the voters in your district isn’t just a legitimate reason to vote one way or the other in an impeachment inquiry. It might be the best reason of all to vote one way or the other!

    The legal context would be more important if this were a standard jury in a criminal trial, but the fact is that these senators and House members are functioning within the context of a representative democracy in an election year. Because I voted against impeaching the president or removing him from office is a perfectly legitimate campaign argument.

    If the American people don’t want the president removed from office–to the extent that not enough Senators will dare to vote to remove him–then he shouldn’t be removed regardless of whether what he did was illegal. If you want the president to be removed from office, then persuading four more senators to call more witnesses or 67 senators to remove him is a wasted effort. You’re supposed to persuade the American people to get rid of him. That becomes even more true in an election year.

    If this impeachment proceeding had occurred just after the midterms, maybe it would be different, but there is a legitimate argument that if the American people want to reelect a scoundrel, they should be free to do so–no matter whether his quid pro quo was legitimate.

    1. Fuck you Ken. You straight up lied about me and aren’t man enough to admit it.

      1. I don’t know what you’re talking about, and I don’t give a shit.

        1. “You straight up lied about me and aren’t man enough to admit it.”

          Read, dumbass.

        2. Ken Shultz
          January.30.2020 at 2:46 pm
          Considering the level of intellect on display here, it wouldn’t surprise me if Sarah Palin’s Buttplug has problems differentiating himself in the labor markets from illegal immigrants with no more than an 8th grade education and the inability to speak English. Is that why you’re so against illegal immigration–because you can’t compete?

          Sarah Palin’s Buttplug
          January.30.2020 at 2:50 pm
          “that why you’re so against illegal immigration–”

          Who said I was against illegal immigration? No, you’re just doing that thing where you lie about my position because I embarrassed you.

          Yes yes, insult my intellect, whole the text is right there and everyone can see you’re doing exactly what I said.

          Sarah Palin’s Buttplug
          January.30.2020 at 2:53 pm
          And just it totally shut you the fuck up and send you away with your tail between your legs,

          I am ABSOLUTELY FOR the removal of restrictions on association between people of ANY KIND.

          I am probably more free assciation than you, you sad runny cunt. You spend so much time impressing yourself with your own pontificstion that you never bother to actually READ what other people say.

          Immigration laws should be repealed, and border rights as they specifically involve property rights enforced. That’s all.

          What now asshole?

          Are you man enough to admit you were wrong and lied?

          1. The answer of course is no, he was not. Let’s see if he’s still not.

            1. Like every buttplug, you reek of feces, as do all who favor illegal immigration. Property rights, based on self ownership, are the basis of all rights.

              1. Read closer dummy.

              2. “border rights as they specifically involve property rights enforced.”

                Did ya not read that, in your rush to show everyone how stupid you are?

                1. Putting that in the same sentence as immigration laws should be repealed makes it an oxymoron. Perhaps unintentional. So which is it? Free immigration or property rights?

            2. That is an incredibly coherent and concise pair of posts, Buttplug. Jesus Christ, Ken. What were you thinking?

  7. One can hope a Democrat wins 2020 and proceeds to shovel metric tons of shit right back into Republican mouths. I’d love to see their faces when it happens.

    1. Oh, it’s definitely going to happen. Even disregarding all Drumpf’s other scandals — concentration camps, World War 3, failing to inform Pelosi before killing that ISIS guy — the terrible economy alone would prevent any incumbent from winning reelection.

      1. So, the Hitler Democrats want to round up the opposition and place them in concentration just like Hitler did? the Dems want open borders to allow terrorists and drug dealers in with out vetting? Do you leave your front door wide open when you are not home or at night? Obama didn’t inform congress when he took out Bin Laden, did you have a problem with that? How about all of the other 1000 people taken out by Obama by drones where he did not inform congress? The economy is the greatest since 1950. Unemployment is at record low levels. Black and minority employment is at never before recorded high levels and you want to destroy all of that? Are you a racist wanting to put blacks out of work? Are you a sadist wanting to destroy this nation just because you hate Trump? You have a f’kn mental problem! It is people like you that are wanting WWIII. Trump backed down on the Iran thing and the news media and the Democrats almost went nuts. They wanted a war and so do you. You are a good example of why the Democrats will loose in 2020. You are all f’kn nuts!!

        1. Allen, just so you know, OBL is proudly satirical and sarcastic.

    2. poor troll wearingit.

      I’ll shit a metric ton in one of your hands and you hope in the other hand and see which one fills up first.

    3. You’re that guy in the Project Veritas video jerking off at the thought of putting people in re-education camps, aren’t you?

    4. Right, that’s always what happens in the election right after an impeachment.

  8. So, the GAO claims he committed a crime and Ilya Somlin claims he committed a crime, and yet the House, chock full of lawyers, could not find a crime and the best they could vote for amounted essentially to “we don’t like him”.

    This was, is, and always will be about nothing more than gathering material for campaign ads.


    1. Clickbait Reason loves clickbait Congress.

    2. “…Ilya Somin claims he committed a crime…”

      More disappointment. He seemed much more level-headed when Volokh was its own thing.

      You don’t need to meet people halfway in an argument when the other side is batshit crazy, Somin.

      1. Somin was one of TDS casualties I most regret. He was a really interesting and insightful legal commentator before the Trumpening

    3. The Democrats still haven’t come to terms with the election results of 2016.

    4. Are you really that stupid? The Dems are the ones that submitted the articles. There were no crimes in those articles. What the h*ll are you talking about? You jujst repeated a story that was puit out by the main stream conspiracy news media that has been lying for over 3 years now. Do you not remember the Mueller investigation? The news media put out over 500,000 conspiracies/lies about Trump/Russia collusion and you idiots believed every word of it. 24/7 for 2 years! And you idiots didn’t say a word to the news media for doing that! That makes you a fool! The news media is STILL doing that to all of you idiots and you are STILL believing them. Do you not learn your lesson? Can’t you get it through your thick skulls that the news media LIED TO YOU?

      1. Uhm, re-read his comment. I don’t think he said what you think he said….

  9. Welcome to the bottom of the “everything is political” slippery slope. In the dark ages (1980’s?) colleges had a subject called “Government and Politics” reflecting the founders’ and common belief that politics is a derivative topic (“opinions about governing” one wise prof taught me). Now we only have “Political Science” and Allen F*&)ing Dershowitz saying this crap. The Legislative Branch has a POLITICAL remedy to keep the Executive in line. It’s NOT about governing, so unlawful isn’t a requirement to impeach. Harvard should be crimson, in embarrassment.



      DURRRRRRRRRRRRRRRRRRRRRRRR Republicans are making impeachment political!

      Wew lad.

      1. The “I want it both ways” shit from people like ipsquire is farcical.

    2. “The Legislative Branch has a POLITICAL remedy to keep the Executive in line.”

      Sounds like the Legislative Branch should be coming up with a POLITICAL argument that’s persuasive enough to convince 67 members of the United States Senate (and the voters they represent) that the Executive needs to be ‘brought into line’.

      “Orange Man Bad’ isn’t going to cut it, no matter how much it rings true to everyone at the New York Times, the Washington Post, MSNBC, CNN, and #Woke Twitter.

    3. Oh, so the constitution is full of crap? The constitution states that to impeach there MUST be treason, bribery, or other HIGH CRIMES and misdemoenors, and misdemoenors are lawful statutes. There were no crimes committed by Trump. Harvard is not the expert on the constitution. It does not take an expert to understand the constitution. It is written in laymens language. If you need a law professor to tell you what simple language means then you have a problem.

      1. And by listing treason and bribery, they mean crimes must be severe enough to be the equivalent of that. It’s entirely possible there’s some criminal activity that we haven’t actually got a law against right now, but it’s up to the impeachment managers to make the case that this activity was a high crime.

        1. In contrast, many state constitutions from the 17th and 18th centuries had impeachment clauses that specified such reasons as “misconduct” or “maladministration,” which are obviously lower standards.

      2. It is written in laymens language. If you need a law professor to tell you what simple language means then you have a problem.

        And yet we have nine lawyers whose job is to interpret the simple language. Not buying it.

        1. Original supreme court justices were not always lawyers. The field has been complicated as lawyers have sought ways to parse language to get to their desired outcome.

      3. I think we have to have the allowance for non-legal crimes. Pretty much by definition, anyone who can get to be president is brilliant and can be underhanded when they wish to be. We do not want to get into a “there ain’t no law” situation, where something is clearly, obscenely unethical, but due to some quirk of wording, it’s technically not illegal.

  10. now do Schiff

  11. To be fair, Dershowitz was trying to make an argument a US Senator could sympathize with. There are no shortage of megalomaniacs in that body who think they are absolutely essential to the country’s future.

  12. Someone remind me, was Sullum calling for Obama’s impeachment after his hot mike quid pro quo moment?

    1. I don’t always agree with Sullum, but he’s both consistent and principled.

      I remember when he criticized the killing of Osama bin Laden for being illegal. Sullum has no sympathy for Osama bin Laden at all, rather, the depth of his consistent support for Constitutional principles is such that he even applies them to people he may personally despise.

      I can’t give you the details of his argument off the top of my head, but my response at the time was something along the lines that even if killing Osama bin Laden were illegal and unconstitutional, I’d think it were an impeachable offense if President Obama had the opportunity and ability to kill Osama bin Laden and didn’t use it.

      . . . .which is another way of saying that as deep as my support for the Constitution and its principles is, Sullum goes further with it than I can.

      1. No, Sullum misinterprets the Constitution, and has become an after the fact apologist for the anti Trump crowd. He is self righteous and sees Trump as unclean, therefore to be opposed on every level for any reason, including the irrational.

    2. Saying, “I’ll have more flexibility after the election” is not quid pro quo, you utter moron.

      1. He was literally asking Russia to not stir up shit during election time and he would be more able to cave after. Fucking moron.

      2. Obama asked for “space” , by which he meant Russian quiet during the election, the quid, for which he would later having won election deliver the quo, removing missile defenses.

  13. Obama committed crimes with impunity and little was written here on elsewhere, criticizing a man who at his best was a racist ex-crackhead, Islamic sympathizer.

    He violated the economic sanctions directly when he had the Treasury Department issue a waiver so Iran could convert $5.7 billion on Omani riyals into euros without notifying congress or the American people. That was just one of the illegal quid pro quo that he was involved in to get that disgusting nuclear deal of his.

    1. ex-crackhead? Oh my god, an actual Larry Sinclair believer in the flesh? Wow!

      1. Keep defending every liberal you non leftist you.

      2. Your arguments tend to be either hyperbole or statements of opinion as fact, yet you have the audacity to label others moron? Maybe think about removing the plank in your eye.

      3. Obama admits to having functioned as a low level purveyor of drugs, understating his involvement in his fictional novel. The facts surrounding his doing an 8-ball while he fired and airburst into Larry Sinclair’s tonsil had nothing to do with it, although it should have been put into a dossier and circulated prior to his election.

        I suspect the closest you came to the Green Beret was your stint as a girl scout,

  14. Alan Dershowitz himself said he developed this defense for Hillary Clinton (not Trump) as he figured she would win the election and Republicans were chanting “lock her up”. That alone tells you a lot.

    1. Yes, it tells you he is fundamentally non partisan, but is happy to suck the most powerful dick he can find.

      Surprising considering it cost him almost all his friends.

  15. How is one certain of a veritable “benefit”. Is it a perceived or clear and tangible benefit? Money or patronage is both. Removing Biden could pave the way for a much stronger or capable candidate like Bloomberg, or consolidate the opposition into a more concentrated fundraising force.

    How would the present arguments be applied in a hypothetical case where Obama had the FBI spy, for mixed motives and with legal authority , on a candidate, believing that the candidate posed a national security threat?

    1. Information has never been held as a benefit of any monetary value. Democrats, and Jeff (but o repeat myself), want to overturn that precedent.

      1. I’m not that keen on anything being traceable to some value, and therefore being illegal unless listed as a donation. It takes a reasonable idea of tracking donations and expands it to just about any behavior. And is being used as a club rather than just, “oh, pay your fine for your violations”, when the opposition wants to make hay.

  16. > While Trump claims he was concerned about rooting out official corruption in Ukraine, the Democrats say, that is merely a post hoc cover for his true motive: discrediting the candidate he viewed as the biggest threat to his re-election.

    Biden’s actions as VP are of public interest, full stop. But, they *know* his true motive… how? They don’t know it. They suspect it. And it is likely true. But no one but Trump knows. That’s the point Dersh is making. If we start ascribing motives to a president’s every action where do we end up? We get Maddow deciding what Republican presidents are thinking and Hannity deciding what Democratic presidents are thinking. Be careful what you wish for!

    Why, oh God, why is Reason, where the motto is “Free Minds and Free Markets,” advocating for the thought police in this instance?!? Mr. Soave, please talk some sense into your colleague Mr. Sullum. If that doesn’t work, maybe there is a psychedelic that treats TDS as well as PTSD that Mr. Sullum could try. Mr. Sullum, stick to your other beats before you completely destroy your credibility.

    1. Yes, and Trump’s motives are transparently displayed in his tweets. Obama Biden and most others are secretive, so more suspicious.

  17. You missed the point. The democrats have combined something that is entirely within the president’s authority with “because he wanted to further his election hopes” into an impeachable offense.

    That’s what he is addressing.

    They have made the claim that motive is everything. They also made the claim that even if there are other motives, the mere existence of a motive of helping his election chances is sufficient to remove him from office.

    Under that theory, no corruption could ever be investigated. Biden was clearly getting payoffs via relatives. This cannot be argued. The stupid “Hunter Biden showed bad judgement in taking the money” line is really indefensible. It is as if Burisma was offering millions upon millions to multiple politically connected people for absolutely no reason at all. So there is not just a pretext for asking for the investigation of what Biden was up to, there is a very strong reason for having such an investigation. With this theory, if Biden had not decided to run for president, there is no impeachable offense. But if Biden sees the walls closing in – he can simply say “I’m a candidate!” and magically it is illegal to investigate his conduct. It is stupid, and Alan was right to say so.

    The standard for official acts is always “having an articulable rational for the action.” Well, Trump has a valid, articulable reason. Case closed. So goes that argument, anyway.

    And it is pretty compelling. Apply the Democrat’s standard to anything else. Obama issued executive orders that were clearly designed to mollify the base. Under this democrat theory, he should have been removed from office for abusing his power.

    Of course, the out that Reason has been using for this sort of argument is an exceedingly lame “more presidents should be impeached”. Fine. I can come up with a big list myself. But that is completely disingenuous here. The standard has never been “If I can find some act that I can argue is political in nature”. It has always been much, much higher.

    The standard the Dems were pushing stands every standard we have ever held on its head. You don’t need to straw man the argument. They need to change theirs. Impeachment for arguably legal actions because “It helps him politically” is a ridiculous argument. No politician ever holds office and doesn’t do things that help them politically.

    1. Biden was clearly getting payoffs via relatives.

      Joe Biden was? Where is the evidence for this?

      1. With Hunter collecting $80k per month, Slow Joe could reduce his allowance.

      2. It is hilarious when you switch names because you got caught saying really dumb shit on your other ones.

    2. With Trump asking for the Burisma investigation, they assume the worst possible motive by Trump as the one that must be true and that he was acting in otherwise legal authority is irrelevent.

      For the Bidens, it is we cannot possibly discern the motives for why a lucrative, no work board membership that he had no qualifications for other than sharing a last name with the VPOTUS was offered to Hunter Biden and it was not outright illegal for him to accept the position.

      That is what is being argued simultaneously.

    3. And it is pretty compelling. Apply the Democrat’s standard to anything else. Obama issued executive orders that were clearly designed to mollify the base. Under this democrat theory, he should have been removed from office for abusing his power.

      The 2011 Dear Colleague Letter was an example.

      Obama threatened to withhold congressionally-approved funds to colleges unless they violated the civil rights of male students.

      And he issued that Letter to gain additional support from feminists and anti-rape activists for his upcoming 20112 re-election campaign.

      The Dems sure did not have a problem with that.

  18. “That seems to be Dershowitz’s position, and it means that Congress has no authority to remove a president who abuses his powers so he can continue to exercise those powers.”

    Totally wrong, and incoherent.

    Dershowitz offers a proposition that has a unique basis. The basis is 1) when an impeachment appertains only to abuse of power articles that are empty of any “ high” crimes (or equal-degree conduct) and 2) when the (alleged-abuse) conduct in question has both a national and self-serving interest.

    In short, his basis is when those events are all compossible.

    Dershowitz advances from that basis his proposition. He says that it is wrong, dangerous and unconstitutional to impeach with an abuse of power
    article that predicates itself on the self-serving aspect of conduct that is void of a high crime ( or similar conduct) because doing so is too subjective.

    And, yes, Congress-the House-has authority ( to impeach), and always will. But such authority must be constitutionally contra subjectively grounded, which Dershowitz suggests is the problem here.

  19. If “mixed motives” are enough to justify Trump’s actions, then they’re enough to justify Biden’s actions too.

    1. And vice versa. See, Trump was justified in having Biden investigated.

    2. “If “mixed motives” are enough to justify Trump’s actions, then they’re enough to justify Biden’s actions too.”

      Actually, the “Bidens/Burisma” actions are a good illustration of the failure and flaws of the present House impeachment process.

      Joe Biden would readily be subject to impeachment. Charge him of abuse of power. Don’t need any high crime. To wit: Biden self-interest; leveraged the national security; threatened a (QPQ) by withholding aid in exchange for a favor.

      Yep. All there. A subjective impeachment (nonsense) writ large.

      1. Edit…”with”abuse of power

    3. Mixed motives sure aren’t coming into play as the House marched somberly with the articles to the Senate, all concerned over the Constitution and not having anything to do with hurting a political opponent, every loud word out of their mouths for the past 3 years.

    4. True, however, there is a far lower standard to start an investigation rather than to convict a person.

      From the information we have, the actual removal of the prosecutor was probably legitimate under the mixed motives standard, though certainly it is concerning from every vantage point and certainly a reason to vote against him. Unless there is some smoking gun communication, I don’t think that it can be proven that he did so for personal reasons. However, without a proper investigation we cannot say so for certain.

      That being said, other things concerning Hunter Biden seem clearly to have Joe abusing his authority. American prosecutors dropping charges against him despite being caught with cocaine multiple times. The Navy granting multiple exceptions to give him a job. I want that inspected as well.

  20. Shame on Sullum for inferring what Dershowitz did not say. “Dershowitz’s argument . . . suggests that the Ukraine quid pro quo was perfectly proper even if Trump’s sole aim was tarring a political rival.”
    No, it doesn’t, so stop extrapolating to unjustified conclusions. What Dershowitz did say was that the fact that a president hopes his actions will help him politically, while he also thinks the actions are good for the country, does not make his conduct an impeachable offense. And why continue to argue about what cannot be resolved: what are the standards for impeachable conduct? There is no “answer” for that, there are just political processes for seeing who has the votes to determine the answer, on a case-by-case basis. Yes, the language is subjective, and those who have the votes will determine what the language means.

  21. If I remember correctly, that “mixed motive” question was the very first question asked during the questions phase, raised on behalf of Romney, Collins and Murkowski. Can Trump be impeached on the issue if his intent was partly to uncover corruption, partly to damage a political opponent, partly to just to get revenge? It was a very stupid question.

    Ask any cop about pretextual stops. A patrol cop can be profiling his ass off, randomly conducting warrantless drug searches, scoping out potential asset forfeitures – but if the cop testifies that you did in fact fail to signal a lane change, no court in the land is going to claim that the stop wasn’t a reasonable exercise of the police authority absent an actual recording of the cop saying he’s planning on stopping the next black guy he sees rolling by simply for the sake of fucking with the guy. Sure, we all “know” the cop was really just making up some bullshit excuse to justify pulling over the driver just so he could do an otherwise unlawful drug search, but the bullshit excuse works, it’s been ruled perfectly lawful.

    We all may know that Trump was illegally using his office just to fuck with Hillary and the Bidens, but as long as he’s got some plausible cover for the fucking, he’s going to get a pass. Except that the Democrats keep insisting, hope against hope, that surely somewhere out there there has to be a recording of Trump saying, “Watch this, I’m going to fuck with Hillary and the Bidens just because I hate them and I feel like it, but I’m going to lie and say it’s about a corruption investigation just so I can get away with illegally fucking with them.” Sorry, Dems, there’s no such recording, you’re delusional if you think there might be.

    1. Bolton was supposed to be the smoking gun.

      But Trump was not materially f-ing with Hildog; where was the investigation of the C foundation and the Comey connection? Covered up by the FIBbers.

  22. It’s one thing to talk about whether offering a crooked deal to a foreign power is impeachable (if they can prove the deal was actually crooked), but bear in mind that the Dems *also* said Trump endangered the national security. They have to be held to that allegation, and if they can’t prove it the case falls apart – a chain is only as strong as its weakest link.

    1. They exaggerated this alleged wrongdoing, just as they minimized Bill Clinton’s wrongdoing twenty-one years ago.

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  26. A Dershowitz-related question I’m hoping someone can answer. It seems to me that Dershowitz made some simple errors that I’ve not yet seen mentioned. To quote, “[Justice Curtis] then went on to a second provision. ‘The trial of all crimes, except in cases of impeachment, shall be by jury’ [Article III, Section 2]. This demonstrated, according to Curtis, that impeachment requires a crime.”
    Isn’t Justice Curtis (and Dershowitz, since he accepts Curtis’s reasoning) simply getting his logic wrong? The sentence in the Constitution leads to the conclusion that there is overlap between the two categories “cases with crimes” and “impeachment cases”, not that the latter category is fully inside of the former.
    Right? Can I get a law professor to help me out here?

    1. You’re misapprehending Dershowitz’s point. The sentence, “The trial of all crimes, except…
      Impeachment, shall be by jury, “ implies that impeachment is a species of crime, per se.

      Thus, impeachment is, in fact, “fully inside of the former,” and his logic remains solid.

      That impeachment is not decided “…by jury” doesn’t exclude it as a (class of) crime. It simply means that impeachment is decided in a separate manner from crime(s); i.e., it’s procedural distinction, rather than a class distinction.

      1. I see what you are saying, and perhaps this is how the law has approached such language, but logically this does not seem to be an open and shut case. (BTW, I’m not concerned with the “by jury” bit; the rest is all that is needed.) Put simply, there is nothing in the sentence to say that “impeachment” is a species of “crime.” That for me is the question, and you seem to just assert one answer to that question. Perhaps with justification, but I want to know why. (While you probably didn’t strategically skip the “in cases of” bit in your re-write, it is worth noting that had that bit not been in the original, I’d probably be more comfortable with your conclusion.)
        Consider, “The eating of all French food, except in cases of desserts, shall be by me.” Obviously there are desserts that are not of the species “French food”. The sentence structure seems to me to be the same as the Constitutional phrase.

        I don’t mean this to be offensive, but is your answer based on your knowledge of what constitutional scholars have written? Or based on simply your own reasoning.

        1. “The eating of all French food, except in cases of desserts, shall be by me.” Obviously there are desserts that are not of the species “French food”. The sentence structure seems to me to be the same as the Constitutional phrase.

          Note your analogy distinctly qualifies the food ( crime) group: you limit it to French food—which allows you to then excuse certain desserts.

          Curtis/Dershowitz include ALL crimes, not some, in their proposition. There’s no qualifier for their crime class. Thus, impeachment IS a species, implicitly, of their crime class.

          Here’s a better analogy as to their position:

          All soldiers, except those with flat feet, shall engage in direct combat. Flat-footed soldiers remain as soldiers ( “crimes” if you will), they just have a separate assignment as soldiers-as does impeachment to a jury, even as it exists as a crime.

          Hope that helps.

          1. “All soldiers, except Females, shall engage in direct combat.”
            Females is not a species of soldiers.

        2. “While you probably didn’t strategically skip the “in cases of” bit in your re-write, it is worth noting that had that bit not been in the original, I’d probably be more comfortable with your conclusion.)”

          I used an ellipsis. I skipped nothing. I’ll assume you know the purpose of an ellipsis.

          1. Sorry for a lack of clarity. Yes, I am familiar with the use of ellipsis. My point was that with a seemingly trivial change in language, the relationship between the categories “crimes” and “cases of impeachment” arguably changes, at least to my ear.

            1. Here’s my final thought. You’re talking to your friend about military justice. He says to you, “well, the trial of all soldiers, except in cases of females, shall be by jury.”

              Are you really going to believe-and tell us- that he wasn’t including females in his class of soldiers as they relate to a jury? You’ll need to answer yes to maintain your position.

              Good luck with that.

              1. I don’t see anything in your last posting as relevant, but thanks for helping me clarify the issue.
                Good luck with all.

              2. Upon re-reading, I see the rather simple error in your last posting. Was this person “including females in his class of soldiers as they relate to a jury”? Yes, of course. But you’ve strayed from the question at hand. The question was not whether ANY females/”cases of impeachment” were subsumed under the category of soldiers/crimes, but whether ALL females/”cases of impeachment” are subsumed under the category of soldiers/crimes. With the case of females, the clear answer is no. So while I’m not yet willing to say that this proves Dershowitz and Curtis are wrong, I am comfortable in saying the argument you’ve presented has not shown them to be right. For which I, again, say thank you.

                1. First, you are misreading the phrase. It says “except in case of impeachment, “ not “all” cases of impeachment.

                  That likely explains your confusion within the applied metaphors.

                  Regardless, the issue is settled by doing no more than textually examining the noun/object that is being excepted; I.e., crime(s).

                  Here’s the sentence: “The trial of all crimes, except in case of impeachment, shall be by jury.”

                  Clearly, the “exception” identified {the phrase, “except in case of impeachment”) attaches to crimes. The nexus leaps out. And the trials aren’t about civil issues or torts-they’re about crimes.

                  Thus the proposition: impeachment must be grounded on a (high) crime or ( per Dershowitz), crime-like conduct.

                  1. If your first comment in this most recent post (the “all” cases comment) acknowledges that some cases of impeachment might not be in the category of “crimes”, then all I can say is, YES, THAT HAS BEEN MY POINT THE WHOLE TIME, and we are in agreement.
                    But the rest of your comment make me less optimistic.
                    So I will have to end my contribution noting that, again, you are addressing the wrong issue. You note that “the “exception” identified {the phrase, “except in case of impeachment”) attaches [sic] to crimes.” Correct, but off topic. My point, the whole time, has been that, as far as I can tell, there is nothing in the constitutional clause that demands that all cases of impeachment fall within the category of “crimes.” Noting that the “exceptions” are a subset of crimes does not help.
                    Thank you for your soldiers example. I think that will be helpful.

  27. So what is an impeachable conduct that doesn’t rise to a level of a serious crime? What would be an example of that, something that calls for an immediate removal of a duly elected president with both sides having no choice but to make that move?

    Let’s say a president poured in federal money (welfare, infrastructure) on battleground states. Maybe he was overheard saying “this will help with my election chances”. Is that an impeachable conduct? Do you have to prove that he would have withheld aid to states not aren’t in play in the election?

    What if Clinton had something like “You better not reveal our affair to anyone else” to Lewinsky? Is that an implied threat, an abuse of power? Or is it just an expression warning against being careless?

    “impeachable but not a crime” that’s not well defined would be unthinkable in a court of law, because the majority / prosecution can just make up their own standard. In an impeachment it opens up potential abuse of power from congress, acting in the name of stopping abuse of power from the president.

    And there certainly was abuse of power here, especially from the FBI. I think special prosecutor should be mandated in all future impeachment and he or she must be involved in drawing articles of impeachment.

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  29. The whole point about mixed motives isn’t so much that motives actually were mixed, but to show the subjectivity behind such arguments. There are hardly any political actions that could not be construed as abuse of power. The interpretation of intent is analogous to impeachment for maladministration. And if you’re going to be even remotely libertarian, I would think that you would support exercising extreme caution when one branch of government attempts to commandeer another by making it subject to arbitrary rules of acceptable exercise of power that it cannot reasonably accommodate since they are vague, ever-changing and ex post facto. It’s comparable to a EULA that states it can be changed at any time for any reason and is effectively an unenforceable social contract between the Legislative and Executive branches.

  30. Any able-minded human being familiar with the text of the phone call, knows that making this whole thing about Joe Biden and hurting his 2020 election is total crap. There were multiple issues involving corruption in Ukraine that wrongly affected a lot of things and a lot of people and if tax dollars were involved (yeah, I happen to be a friggin taxpayer) people NEED TO BE PROSECUTED! If Joe Biden chose to be one of many moving parts of this, THAT’S HIS PROBLEM! This doesn’t have a thing to do with messing up some has-been trying to get elected in 2020. It has EVERYTHING to do with what went on before, during and after the 2016 election. This is waaaaay too obvious to be unknown and it’s obvious The DemMedia has no interest, so the author here, Jacob Sullum, is either incredibly stupid or he’s a DemMedia lapdog, liar like the rest of them.

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