Dershowitz: Not Unlawful for President to Use Quid Pro Quo Unless the Quo Is Illegal

By Melanie Arter | January 29, 2020 | 3:56pm EST
(Photo by MANDEL NGAN/AFP via Getty Images)
(Photo by MANDEL NGAN/AFP via Getty Images)

( – Alan Dershowitz, a member of President Donald Trump’s legal defense team, argued on Wednesday that it is not against the law for the president to use a quid pro quo unless the quo is somehow illegal.

Speaking on the Senate floor, Dershowitz answered a question posed by Sen. Ted Cruz (R-Texas), which said: “As a matter of law, does it matter if there was a quid pro quo? Is it true that quid pros are often used in foreign policy?”

Dershowitz used as an example a president’s decision to withhold funding from Israel contingent on them stopping all settlement growth, or on the flip side of that, withholding funds from the Palestinians until they stop paying terrorists:

Yesterday I had the privilege of attending the rolling out of the peace plan by the president of the United States regarding the Israel/Palestine conflict, and I offered you a hypothetical the other day. 

What if a Democratic president would be elected and Congress were to authorize much money to either Israel or the Palestinians and the Democratic president were to say to Israel ‘No, I'm going to withhold this money unless you stop all settlement growth’ or to the Palestinians, ‘I will withhold the money Congress authorized to you unless you stop paying terrorists.’

And the president said, quid pro quo. If you don't do it, you don't get the money. If you do it, you get the money. There’s no one in this chamber that would regard that as in any way unlawful. 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, and the Israel argument would be in the public interest. The second is, is in his own political interest, and the third, which hasn’t been mentioned would be in his own financial interest. His own financial interest, just putting money in the bank. 

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's 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. 

I quoted President Lincoln, when President Lincoln told General Sherman to let the troops go to Indiana so that they can vote for the Republican Party. Let's assume that the president was running at that point, and it was his to have these soldiers put at risk the lives of many other soldiers who would be left without their company. Would that be an unlawful quid pro quo? 

No, because the president A believed it was in the national interest, but B he believed that his own election was essential to victory in the Civil War. Every president believes that. That’s why it’s so dangerous, to try to psychoanalyze a president, to try to get into the intricacies of the human mind. Everybody has mixed motives, and for there to be a constitutional impeachment based on mixed motives would permit almost any president to be impeached. 

Dershowitz explained that many presidents make foreign policy decisions after checking with the political advisers and pollsters.


How many presidents have made foreign policy decisions after checking with their political advisors and their pollsters? If you’re just acting in the national interest, why do you need pollsters? Why do you need political advisors? Just do what's best for the country, but if you want to balance what’s in the public interest with what's in your party's electoral interest in your own electoral interest, it’s impossible to discern how much weight is given to one or to the other. 

Now, 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 we are right. 
It's not in the national interest for everybody 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 motives, if you have a mixed motive that partially involves national interest, partially involves electoral and does not involve personal peculiarity interest. 

The House managers do not allege that this decision, this quid pro quo, as they call it, and the question is based on the hypothesis there was a quid pro quo …They never allege that it was based on pure financial reasons. 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 $1 million 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 to come at the national interest will suffer greatly. That cannot be an impeachable offense.



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