The Daily - The Latest: The ‘Public Interest’

Episode Date: January 30, 2020

In the question-and-answer stage of the Senate impeachment trial, Alan Dershowitz, the celebrity lawyer on President Trump’s legal team, made an argument that stunned many who heard it. Say that Mr. Trump did extend a quid pro quo to Ukraine, and that he did it to improve his own re-election prospects. Says Mr. Dershowitz: What’s wrong with that?“The Latest” is a new series on the impeachment inquiry, from the team behind “The Daily.” You can find more information about it here.

Hear ye, hear ye, hear ye. All persons are commanded to keep silent on pain of imprisonment. The Senate will receive the managers of the House of Representatives to exhibit the articles of impeachment against Donald John Trump, President of the United States. Let us pray. Divine Shepherd, refresh our senators as they enter a new phase of this impeachment trial.

It's Julie Davis in the Washington Bureau of The New York Times. So today we entered a new phase in the impeachment trial where after the House managers got to make their case for three days uninterrupted, and then the president's lawyers got to make their case for three days also uninterrupted, now senators are finally able to ask questions. Today the Senate will conduct up to eight hours of questions to the parties. As a reminder, the two sides will alternate. An answer should be kept to five minutes. It's this formal process where they still have to sit silently, as they have been this whole time.

The senator from Massachusetts, send a question to the desk. But when they have a question, they can say that they have a question. And they've written it down on these small cards, which are then carried by hand to the clerk, who hands it to the chief justice, John Roberts, who is presiding over the trial, who reads the question aloud to whichever side it's intended for. Question from Senator Markey to the House managers. On Monday, President Trump tweeted...

The thing is, senators keep submitting questions to their own side. And both sides were also clearly coordinating which of them would submit questions. Mr. Chief Justice, I send a question to the desk on behalf of myself, Senator Murkowski, and Senator Romney. The very first question of the day was from three of the moderate Republican senators who are known to be the most likely to vote with Democrats to hear from witnesses like John Bolton. That's significant because the party wants to give first dibs to the senators who have the most concerns,

both about the allegations against the president, but also about making sure the trial is seen as fair. Thank you. Thank you, counsel. So that's pretty much how the day went. But the latest is what happened during one of these exchanges about an hour into the proceedings. Senator Cruz. Mr. Chief Justice, I send a question to the desk. It started with a question from Republican Senator Ted Cruz of Texas. The question is addressed to counsel for the president.

As a matter of law, does it matter if there was a quid pro quo? Is it true that quid pro quos are often used in foreign policy? It was a leading question that seemed designed to elicit the response of basically quid pro quos are totally normal, especially when dealing with other countries. And that's part of the argument Trump's legal team has made all along. Chief Justice, thank you very much for your question. And because the question was directed to the defense, Alan Dershowitz, one of the president's lawyers,

walked up to the microphone to answer it. The only thing that would make a quid pro quo unlawful is if the quo were in some way illegal. Now, we talked about motive. There are three possible motives that a political figure can have. One, a motive in the public interest. The second is in his own political interest. And the third would be in his own financial interest. I want to focus on the second one for just one moment. Every public official that I know believes that his election is in the public interest. And mostly you're right. Your election is in the public interest.

And 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. So what Dershowitz is arguing here goes pretty far beyond making the case that presidents use quid pro quos in dealing with foreign policy all the time. making the case that presidents use quid pro quos in dealing with foreign policy all the time. Dershowitz is saying that even if a president is doing something not for policy reasons, but for his own political benefit to get reelected, there's nothing wrong with that. Because a president believes that his own reelection is in the national interest. And so a quid pro quo for something that's in the national interest is not an impeachable offense. We may argue that it's not in the national interest for a particular president to get reelected or for a particular senator or member of Congress. And maybe you were

right. It's not in the national interest for everybody who's running to be elected. But for it to be impeachable, you would have to discern that he or she made a decision solely on the basis of, as the House managers put it, corrupt motives. And it cannot be a corrupt motive if you have a mixed motive that partially involves the national interest, partially involves electoral. interest partially involves electoral. It would be a much harder case if a hypothetical president of the United States said to a hypothetical leader of a foreign country, unless you build a hotel with my name on it, and unless you give me a million dollar kickback, I will withhold the funds. 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.

That cannot be an impeachable offense. Thank you, Mr. Chief Justice. So I'm at my desk listening to this, and I was just really taken aback. This is a much more expansive version of the defense than we've heard before. But then I realized this feels like the next step in what has been an evolving set of arguments over the last several months from the president's defenders. When reports of Trump's call with Zelensky, the president of Ukraine, first broke, the initial defense by the president's team was there was nothing inappropriate about the phone call. A perfect call, as President Trump kept saying. Then, as we heard more evidence suggesting the call was maybe inappropriate, the defense changed to saying, well, there had been no quid pro quo. Then, when we started to hear that maybe there was a quid pro quo, the defense became that

that quid pro quo could be explained away, that it was for foreign policy purposes. He was concerned about corruption. He was concerned about burden sharing with other countries. And then finally, this week, when we reported that John Bolton's book would provide a firsthand account that the quid pro quo was explicitly about getting information about Trump's political rivals, we got Dershowitz's statement today. So the big question is how this extremely broad theory of presidential power will be understood by the more moderate Republican senators that Republicans have been trying to appease this whole time. For senators like Susan Collins and Lisa Murkowski,

they're grappling with whether there's a rationale for voting against witnesses and quickly acquitting the president. And to do that, Trump's defense team has given them this whole giant array of justifications to choose from. And with this new extreme idea, Dershowitz is offering a legal theory that is so broad that it essentially relieves them of the need to hear any additional evidence. If the underlying accusation, President Trump withheld foreign aid for his own political gain, is totally fine and not impeachable, why bother hearing from witnesses or subpoenaing documents that would prove he did that? So that's the latest.

Tomorrow, we have eight more hours of questions from senators.