Dershowitz: Even if Bolton's correct, it's not impeachable conduct

And so, thanks to John Bolton, Team Trump has reverted to its fallback “no big deal” strategy, by default more than choice. The former national security adviser’s name didn’t even come up in the defense presentation until almost the end of the day yesterday, when Alan Dershowitz launched his promised constitutional argument against impeachment over Ukraine-Gate. Dershowitz conceded nothing on Bolton’s reported claims in his upcoming memoir, but he argued that those wouldn’t matter even if they were entirely true.

Quid pro quos and ambiguous allegations of abuse of power are political arguments in elections, Dershowitz argued, not crimes that trigger impeachment. And he has the history to show it:

This argument might have been more effective had the White House just stuck to it all along. Trump’s team and his Republican allies have argued this point, but they’ve overshadowed it with denial after denial of any quid pro quo at all. Andrew McCarthy has repeatedly warned that they should be careful about outright denials, and wrote last night that they’ve dug their own hole on this:

For months, I’ve been arguing that the president’s team should stop claiming there was no quid pro quo conditioning the defense aid Congress had authorized for Ukraine on Kyiv’s conducting of investigations the president wanted. Trials and impeachment itself are unpredictable. You don’t know what previously undisclosed facts might emerge during the trial that could turn the momentum against you. So you want to mount your best defense, the one that can withstand any damaging new revelations.

Here, the president’s best defense has always been that Ukraine got its security aid, and President Volodymyr Zelensky got his coveted high-profile audience with the president of the United States (albeit at the U.N., rather than at the White House). Kyiv barely knew defense aid was being withheld, the very temporary delay had no impact whatsoever on Ukraine’s capacity to counter Russian aggression, and Zelensky was required neither to order nor to announce any investigation of the Bidens.

However objectionable the calculations that led to the delay may have been, nothing of consequence happened. Therefore, there was no impeachable offense. Case closed.

Except it’s not case closed, because President Trump and his advocates would not content themselves with a strong defense built on what was true. The president wants total vindication, which is not necessary in order to avoid removal from office. So he has mounted his defense on the impossible propositions that his interaction with Zelensky was “perfect” and that there was no quid pro quo.

Well, they’re back to that argument now whether they like it or not. Had they stuck to the course McCarthy suggested, it might not have made Trump look pristine but it wouldn’t have made him look as dirty as contradicted denials will make him look now. Even if Dershowitz makes a great argument on this point, Trump will likely come out of this looking dishonest, assuming that Bolton’s book says what has been reported by second-hand sources. If Trump hadn’t gone the denial route, Bolton’s testimony would be irrelevant now. Essentially, Trump and his team fought the Democrats on their turf rather than his.

Dershowitz scored points on other arguments, however. He told the Senate that the House’s “standard-less” approach creates such an ambiguous fog that literally any and every president has and will fall afoul of it if the Senate enforces this precedent. Not only are the articles based on subjective hearsay and rumor, they are being offered in the worst partisan interpretation of it all:

How many presidents would have been impeached under this standard-less approach? Dershowitz offers an amusing stroll through history:

Note that Dershowitz left three names off the list — Richard Nixon, Bill Clinton, and Andrew Johnson, the three presidents who either got impeached or resigned ahead of it. Both Nixon and Clinton committed statutory crimes, while Johnson got impeached on largely the same basis as Trump did, on constitutionally deficient allegations of “abuse of power.” At any rate, Dershowitz’ litany was an effective presentation on how abuses of power short of “high crimes and misdemeanors” should be handled — and have been historically handled: at the ballot box, not in the Senate dock.

“Let the public decide.” They will have their change in ten months to determine whether they think Trump should get a second term. Why not let them?