(CBS News) – “When the president does it, that means it is not illegal.”
When former President Nixon said that more than four decades ago, he’d already left office while facing impeachment proceedings. Now, in 2020, President Trump’s defense team is making an identical argument to say the commander-in-chief shouldn’t be impeached.
Critics of the president — including one with direct ties to Nixon and the Watergate scandal — noted the similarities between Nixon’s notorious line and an argument made by Trump lawyer Alan Dershowitz on Wednesday at the Senate impeachment trial.
Dershowitz said a president can’t be impeached for actions he takes to win an election if he believes his victory would be in the interest of the public and the nation.
“Every public official that I know believes that his election is in the public interest,” Dershowitz said. “And mostly you’re 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.”
One impeachment charge against Mr. Trump alleges he abused his power by pressuring Ukraine to investigate Joe and Hunter Biden, intending to influence the 2020 election.
Dershowitz argued Mr. Trump did not have entirely “corrupt motives” if he believed winning a second term was good for the country.
“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,'” he said. “That cannot be an impeachable offense.”
Congressman Adam Schiff, the lead House impeachment manager, said Dershowitz’s argument would let any president off the hook.
“If you say you can’t hold a president accountable in an election year, where they’re trying to cheat in that election, then you are giving them carte blanche,” Schiff said. “All quid pro quos are not the same. Some are legitimate and some are corrupt, and you don’t need to be a mind reader to figure out which is which.”
John Dean, who served as White House counsel under Nixon and went to prison for his role in the Watergate coverup, drew a direct line between Dershowitz’s argument and Nixon’s infamous self-defense.
“Alan Dershowitz unimpeached Richard Nixon today,” Dean wrote on Twitter. “All Nixon was doing was obstructing justice and abusing power because he thought he was the best person for the USA to be POTUS. When POTUS does it… etc. Seriously, that was his motive! Agree with Alan and impeachment is gone!”
Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute, said on CBSN that Dershowitz’s argument “fails the ‘straight face’ test” and compared it to Nixon’s remark.
Dershowitz pushed back on the criticism in a series of tweets Thursday, saying his argument was being distorted.
“They characterized my argument as if I had said that if a president believes that his re-election was in the national interest, he can do anything,” he wrote in one tweet.
He wrote that he believes a president cannot do something illegal while seeking reelection, but “a lawful act— holding up funds, sending troops to vote, braking a promise about Syria—does not become unlawful or impeachable if done with a mixed motive of both promoting the public interest and helping his RE-election” [sic].
Nixon resigned from office in 1974 before facing a formal impeachment vote. The House Judiciary Committee had already approved three articles of impeachment against Nixon, charging him with obstruction and unconstitutional conduct related to the cover-up of the Watergate break-in.
Three years after resigning, Nixon broke his silence in a series of interviews with British journalist David Frost. Nixon uttered the most memorable line from the interviews after Frost asked if he believed a president can do something illegal after deciding “it’s in the best interest of the nation.”
“Well, when a president does it, that means that it is not illegal,” Nixon replied.
He said that if a president approves an action “because of the national security” or “a threat to internal peace and order,” then that decision “enables those who carry it out to carry it out without violating a law. Otherwise they’re in an impossible position.”
Despite that argument, Nixon expressed remorse in other parts of the interview — something that, so far, hasn’t factored into the White House’s defense of Mr. Trump.
“I let down the country,” the 37th president told Frost. “I let down our system and the dreams of all those young people that ought to get into government but think it’s all too corrupt… I let the American people down, and I have to carry that burden with me for the rest of my life.”
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