The Absurdity of the ‘He Didn’t Break a Law’ Defense

It defies history, logic, morality, and the Constitution.

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On Monday night, I listened to Alan Dershowitz’s argument as I drove home. It was, as you might expect from a seasoned criminal defense attorney, well-delivered, well-structured, and learned. It was also so full of bat-guano craziness it might be a vector for the coronavirus. 

I said as much on Twitter with perhaps too much verve and too little panache. 

As shocking as this may be to virtually nobody, many of the people who want Dershowitz to be right heaped scorn on me. There was plenty of “Sure, professor Goldberg” stuff. 

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  1. Avatar photo
    AaronT

    I am so impressed with what you’re doing here, Jonah. I listen to all of The Dispatch podcasts and want more!

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    CynthiaW

    Excellent discussion, Jonah. Appreciated the reminder that Dershowitz, though being presented as a "Constitutional Scholar," is first and foremost a criminal defense attorney.

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    BrandonAlleman

    Each election somewhat 'overturns' the last and 2018 is the last one we've had.

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    JohnF

    Much of this situation could have easily been averted. Jonah has observed elsewhere and in various podcasts that Trump could have defused the current situation simply by admitting that the phone call was wrong and promising to be better in the future. Instead, he doubled down … claiming that the call was "perfect". Although he was apparently innocent, he then refused the opportunity to provide supporting evidence for that innocence and instead chose to block the release of any relevant documentation while also blocking first-party witnesses from testifying. All of which leads to the question: "If you don't have anything to hide, why are you hiding so much?

    If a President has no constraints and cannot be sanctioned outside of a four-year election cycle, the United States is no more Democratic than Putin's Russia.

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    J.D. Whitlock

    Thank you Jonah

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    Gary H.

    Also, excellent piece.

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    Gary H.

    Mr. Goldberg, there is a key item on determining Trump's intent that is not being emphasized, although I am not watching every minute of the proceedings. The House Managers are making two points but not the key third point. The Democrats are saying that Trump gave aid in 2017 and 2018 with no ask for an investigation...but that could be due to a new Ukranian President in 2019. The Democrats are saying that Volker/Sondland wanted Burisma and election interference mentioned in the desired Ukranian statement. That can also be countered...the concern could still be general corruption. But, here is the third point. According to the Washington Post, Volker, sometime after August 9th, "contacted Guiliani to get guidance on what the statement (Ukraine's public statement) should include". "On Aug.13...Volker sent Sondland what appears to be draft language to include in the statement". The text from Volker to Sondland said, "Special attention should be paid to the problem of interference in the political processes of the United States especially with the alleged involvement of some Ukranian politicians" (then, presumably in Zelensky's voice) "I want to declare that this is unacceptable. We intend to initiate and complete a transparent and unbiased investigation of all available facts and episodes, including those involving Burisma and the 2016 U.S. election, which in turn will prevent the recurrence of this problem in the future". The last part of that sentence..."prevent the recurrence of this problem"...indicates that wrongdoing has already been uncovered/determined. While this is not a smoking gun on Trump's intent...Rudy/Volker may have gone rogue...it appears to be an attempt to smear Biden. It should be enough for Republican Senators to get in front of a microphone prior to the removal vote and say, "I am not voting for removal today because of the monumental step that is in our democracy. But, I seriously considered voting for removal because, while there is no smoking gun, there is a strong case that President Trump's intent, with the quid-pro-quo, was primarily, or solely, driven by personal political interest. President Trump's behavior was highly inappropriate, inconsistent with the values of our democracy, and not befitting the Office of the Presidency".

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      Theirn Scott

      How many Republican Senators would be brave enough to speak those caveats in public?

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    Pat Riot

    I would urge people to remember that "politics of the day" fades from history vey quickly. History nerds know that Nixon's party defended him almost to the end and, like today's Republicans, threw up a bunch of arguments (that I don't even know about since I'm not a history nerd).

    Nobody will care why Republicans defended Trump here, only that they did. And history won't report on some nuances of what James Madison said, it will report on Trump's attempted subversion of his election using a foreign power.

    And it will report that Republicans were a-okay with that (and any of them exclaiming they, "had their reasons because of nuance xyz" will be unconvincing).

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  9. Q22

    You make a clever rhetorical trick when you say only because Prof. Dershowitz didn't say only. He did say that the action needed to be either criminal OR criminal like. In your own cited example of Madison - that a President encouraging someone to break the law with the promise of a pardon would be impeachable - the act of encouraging criminal behavior might not break any statutory law but is certainly criminal like in it's intent of having laws broken so I think even Dershowitz would agree that it is impeachable.

    Of course Madison, in his same argument about pardon abuse, claimed that impeachment was required when "the President can displace from office a man whose merits require that he should be continued in it" suggesting that merely firing someone would be impeachable. Really? Would you support that?

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    Jack Cholla

    I wish the house see had simply filed an article as simply “By temperament, is ill suited for the office.” That is something upon which all senators could agree.

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    1. Q22

      Isn't that 25th Amendment stuff?

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        Jack Cholla

        Naw, that’s if he has a stroke, like Pres. Wilson.

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