Dershowitz made his comments as the Senate launched into a question-and-answer session in the second week of the third presidential impeachment trial in U.S. history. Following a model established during President Bill Clinton’s impeachment, senators wrote their questions on slips of paper that Senate pages passed to Chief Justice John G. Roberts Jr., who is presiding over the trial. Roberts then read the questions out loud from the dais, glancing over his glasses as he addressed the queries either to the White House defense team or the seven House Democratic impeachment managers.
Dershowitz’s remarks came in response to a question from Sen. Ted Cruz (R-Tex.) about quid pro quos, one of the offenses Trump is alleged to have committed. Democrats impeached Trump last month on a charge of abuse of power, alleging he withheld military aid and a White House visit from Ukraine until Kyiv announced investigations into his political opponents, and also charged him with obstruction of Congress.
“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,” asserted Dershowitz.
The law professor went on to say that if a president were to tell a foreign leader he was going to withhold funds unless his foreign counterpart built a hotel with his name on it and gave him a million-dollar kickback, “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,’ ” Dershowitz said. “That cannot be an impeachable offense.”
Dershowitz’s argument Wednesday extended a line of reasoning he had advanced earlier this week, when he contended that even if proved, the charges against Trump would not constitute impeachable offenses. Some GOP senators were quick to latch on to that earlier argument, especially in the wake of leaks from an unpublished book by former national security adviser John Bolton directly linking Trump to the conditioning of security assistance to Ukraine. Bolton wrote about a conversation in which Trump discussed delaying the aid until Ukraine announced politically charged investigations, including into former vice president Joe Biden, a front-runner for the 2020 Democratic presidential nomination, and his son Hunter.
But Dershowitz’s new and more expansive line of defense left some Republicans uncertain how to respond, while infuriating Democrats.
“I couldn’t comment on that because I’m not a constitutional lawyer,” said Sen. Mike Braun (R-Ind.). He also insisted that he put stock in Dershowitz’s argument “only in the context of how it applies to the Ukraine, which has had corruption, and that the Bidens were there with an argument that you can’t say they had their hands clean.”
Earlier this week, Braun praised Dershowitz for giving senators a framework through which to look at all questions about the impeachability of presidential actions. On Wednesday, a few moments after insisting he only put stock in Dershowitz insofar as it related to Ukraine, he repeated that Dershowitz “gave everyone a framework within which to look at” questions of impeachability.
Meanwhile, Sen. Tim Scott (R-S.C.) slowly separated himself from a defense of Dershowitz — before slipping away from the conversation entirely.
“I think when you conflate all the issues, you can kind of, to a point when you’re asking a question in a silo, which is inconsistent with what we just heard today,” Scott said. “So I want to separate myself from that part of the conversation because ultimately, I think the premise itself is flawed and I don’t want to agree with that necessarily.”
Multiple Democrats, including Sen. Kirsten Gillibrand (N.Y.), skewered Dershowitz’s argument to the point of mockery.
“His argument was beyond absurd. I thought he made absolutely no sense — because he essentially said that if President Trump believes his election is for the good of the American people that he could do whatever he wants,” Gillibrand said. “He is wrong, and I think he’s made a laughable argument that undermines the president’s case.”
The claims in Bolton’s book, due out in March, go to the heart of Democrats’ impeachment charges against Trump.
But while prosecuting their case in the House, Democrats had no firsthand witnesses, leading Republicans to dismiss much of their case as hearsay. Bolton could provide that firsthand evidence, and the revelations from his manuscript Sunday set off heated debate among Senate Republicans over whether to call him as a witness.
A few moderate Republicans have indicated they want to hear from Bolton, leading Majority Leader Mitch McConnell (R-Ky.) to privately caution colleagues Tuesday that he might not have the votes to shut down a motion expected Friday to call for new witnesses. Only four Republicans would need to defect and join Democrats in order for a vote to call witnesses to succeed.
McConnell wants to avoid calling additional witnesses, since it could extend the contentious proceedings into unpredictable territory. But by Wednesday, leading Republicans were sounding more confident. Trump is set to deliver his State of the Union address Feb. 4, and Republicans would like to have the impeachment trial behind them by that point.
“My sense is we will get there,” said Sen. John Cornyn (R-Tex.), a key McConnell ally.
“I’m pretty confident that people will say we heard from the 17 witnesses in the House and saw all the documents they generated,” Cornyn added. “I don’t know what any additional witnesses would add, other than prolonging the trial and leading to a months-long battle over executive privilege.”
For his part, Senate Minority Leader Charles E. Schumer (D-N.Y.) sounded glum about the prospect of getting additional witnesses.
“The president and Mitch McConnell put huge pressure on these folks,” Schumer told reporters during a break in the proceedings. “So I hope we can get witnesses and documents. It’s an uphill fight. Is it more likely than not? Probably no. But is it a decent, good chance? Yes.”
Republicans have insisted that if witnesses were allowed, they would insist on calling their own, such as the Bidens. But an initial vote on allowing witnesses would have to be followed by additional votes on which ones to call, and most Democrats insist they won’t agree to witnesses for the White House.
Either way, Trump remains highly likely to be acquitted by the Senate in the end, as a two-thirds vote would be required to convict him.
answer session provided a window into the thinking of some members of the Senate, who have had to remain silently in their seats throughout the proceedings, instead of talking at length during occasional appearances in the Senate chamber, which is their usual practice.
At one point late Wednesday afternoon, Sen. Susan Collins (R-Maine) tried to ask a fact-finding question that would get into the president’s motive in delaying the military aide to Ukraine: Before that issue arose last summer, had Trump ever mentioned the Bidens in relation to corruption to Ukrainian President Volodymyr Zelensky’s predecessor?
Deputy White House Counsel Patrick Philbin declined to answer, saying he would only answer questions that were related to issues in the record that House investigators had assembled.
House Democratic impeachment managers repeatedly made the point that if senators want more direct information, all they need to do is call Bolton to testify.
“The Senate can get to the truth by calling witnesses,” said Rep. Hakeem Jeffries (D-N.Y.).
Sen. Rand Paul (R-Ky.) drafted a question that would name the anonymous whistleblower whose complaint about Trump’s Ukraine dealings triggered the impeachment inquiry, but Roberts has declined to read it, according to two officials who spoke on the condition of anonymity to discuss a sensitive matter.
Toward the end of the night, Democrats bridled over comments by Philbin responding to a question from Sen. Christopher A. Coons (D-Del.) about Trump’s apparent public solicitation of Russia and China for compromising materials on his campaign rivals. Philbin argued that Trump’s remarks did not, in fact, represent a violation of campaign finance laws that make it illegal to accept or solicit a “thing of value” from foreign sources.
“Apparently it’s okay for the president to get information from foreign governments in an election — that’s news to me,” said Rep. Zoe Lofgren (D-Calif.), a House manager, as fuming Democrats accused Philbin of engaging in a wholesale rewrite of federal law to cover for Trump.
But many of the questions submitted by senators — more than 90 of them by the time the proceedings drew to a close around 11 p.m. — simply appeared designed to allow one side or the other to repeat points they have made over the past week and a half, as first the House managers and then the White House team presented their cases. There have been 16 hours total allotted for questions, eight for each side, and the questioning picks up again Thursday.
Meanwhile Wednesday, away from the Senate chamber, representatives for Bolton disputed claims by the White House that his book contained classified information that could prevent its publication. And former attorney general Jeff Sessions, a frequent and public target of Trump’s ire while he served in the administration, picked a fight with Bolton, declaring that he himself had chosen not to write a book because “I don’t believe it is the honorable thing to do.”
Paul Kane, Rachael Bade, Seung Min Kim, Mike DeBonis, Robert Costa and Josh Dawsey contributed to this report.