Trumpâs lawyers are betting on their audience having no idea how the law works
President Donald Trumpâs lawyers are staking out bold ground by claiming that abuse of power â which is, to many, the quintessential impeachable offense â is not actually grounds for removing a president at all.
Criminal defense attorney Alan Dershowitz had been the most prominent advocate of this assertion, even though both the constitutional scholar who Dershowitz cites in his argument contradicts the interpretation, and the Republicansâ other witness on constitutional matters, Jonathan Turley, doesnât buy the extreme claim.
But beyond just arguing that âabuse of powerâ is insufficient for an impeachment charge, Dershowitz made the even greater leap that there is something inherently illegitimate about trying to discern whether the president had a corrupt motive in his act.
He said that to charge Trump with abuse of power, Democrats are attempting to âpsychoanalyze the President and attribute to him a singular, self-serving motive.â
This, he argued, âcannot be the legal basis for a serious accusation of abuse of power that could result in the removal of an elected president.â
He continued: âWhat a standard! What was in the presidentâs mind? Actually in his mind? What was the âreal reasonâ? Would you want your actions to be probed for what was the âreal reasonâ why you acted?â
On Monday, another of Trumpâs lawyers, Pat Philbin, echoed this argument, asking: âHow are we supposed to get the proof of whatâs inside the presidentâs head?â
But such arguments will only appeal to people who have no familiarity with criminal law. In other words, Trumpâs lawyers are hoping to pull one over on their audience with this argument.
Reuters reporter Brad Heath on Twitter said in response to Philbinâs question: âThis is a thing that happens at many, many criminal trials. Did the defendant intend to shoot someone? Did he know that he had a duty to report income? Most criminal laws require that prosecutors provide evidence of subjective intent.â
Sen. Elizabeth Warren (D-MA), who, like Dershowitz, taught at Harvard Law School, said his arguments were ânonsensical.â
âHis characterization of the law simply is unsupported,â she told reporters after Dershowitzâs presentation in the Senate trial. âHe is a criminal law professor who stood in the well of the Senate and talked about how law never inquires into intent and that we should not be using the presidentâs intent as part of understanding impeachment.â
She continued: âCriminal law is all about intent. Mens rea is the heart of criminal law. Thatâs the very basis of it. So it makes his whole presentation just nonsensical. I truly could not follow it.â
Dershowitz challenged Warrenâs criticisms on Tuesday on Twitter, saying she âwillfully mischaracterized what I said, claiming that I spoke about âintent.â I challenge her to find that word anywhere in my presentation. I talked about the difficulty of discerning mixed motives.â
But Dershowitz didnât distinguish between intent and motive in his remarks, and itâs not clear why this would save his argument. He suggests that knowing what is âactuallyâ in a defendantsâ mind is unknowable, but this would apply to intent as much as motive. Further, heâs the one who brought up the idea of determining Trumpâs âmotiveâ at all. House impeachment managers could simply say that Trumpâs corrupt intent as a part of the illicit quid pro quo he tried to arrange with Ukraine, to the benefit of his campaign, is what matters. And âcorrupt intentâ is an established part of criminal law; it featured prominently in Special Counsel Robert Muellerâs discussion of Trumpâs potential obstruction of justice during the Russia investigation.
Dershowitz has also previously claimed that Trump, as president, is immune from examination of either his intent or motives: âYou cannot question a presidentâs motives when the president acts. If a president pardons, thatâs it. If a president fires, thatâs it. You canât go beyond an act and get into his motive or into his intent.â
But heâs offered no real reason to justify these assertions.
Aya Gruber, a law professor who studied under Dershowitz, also called his argument âshockingly wrong.â
âThe crux of any bribery or bribery type case is the defendantâs desire to obtain something of personal value. This is actually intent, not motive. So with Trump, the very question is whether he withheld aid with intent to receive the personal benefit of dirt on Bidens,â she said on Twitter. âTrumpâs motive for getting the dirt (He fears Joe winning, hates Hunter, just rolls that way) is secondary. The important question is whether he sought a personal benefit. If not, itâs not bribery or abuse. If so, then it is bribery or abuse.â
She added: âDersh must realize this argument is bunk. We divine intent from evidence all the time.â
