In January 2020, nearly a year before supporters of Donald Trump swarmed the Capitol in an effort to help him retain power, attorneys working on his behalf stood on the floor of the Senate to do the same thing.
Trump was on trial — not on criminal charges but after having been impeached by the House for his efforts to pressure Ukraine into aiding his reelection bid. The Senate was asked whether that impeachment warranted Trump’s removal from office. His attorneys argued that it did not.
The contours of the allegations will seem familiar to those tracking the current political conversation. Trump wanted Ukrainian President Volodymyr Zelensky to announce an investigation into Joe Biden’s push for the firing of the country’s prosecutor general. To that end, as established in the impeachment probe, he and his allies withheld aid to Ukraine and prevented Zelensky from visiting the White House. The idea was that Ukraine could damage Biden, the person Trump correctly assumed would be his 2020 opponent.
At one point in the Senate hearing, one of Trump’s lawyers offered a defense that may also sound familiar: Trump did nothing wrong because he was inherently allowed to seek his own reelection by whatever means he thought appropriate.
In the moment, the question being addressed was whether any public benefit might ensue from Trump’s efforts, bolstering justification for Trump’s demands. Trump’s attorney Alan Dershowitz offered a novel argument that it did.
“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,” he said. “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.”
He noted that actions taken for explicit personal benefit, like “unless you build a hotel with my name on it and unless you give me a million-dollar kickback, I will withhold the funds,” were not excusable. But there was “a complex middle case,” he continued.
“’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,’” Dershowitz imagined a president saying. “That cannot be an impeachable offense.”
Trump was not convicted by the Senate, though it’s unlikely that arguments such as Dershowitz’s were as important as partisan politics. That argument, though, would be an undercurrent to the next year — to the next three years, really. Was there an action that Trump could take in service to his efforts to retain power that were beyond the bounds?
On Monday, Trump’s former White House chief of staff Mark Meadows appeared in court in Georgia. He’s seeking to have his indictment in Fulton County moved to federal courts, arguing that the actions he undertook in the waning weeks of the Trump presidency were part and parcel of his role as a federal official.
“Having open questions [about the election] continued to be a roadblock for initiating other plans,” Meadows said during his testimony. He added: “I just needed to land the plane.”
His attorney echoed that argument, saying that “his client was operating ‘under the color’ of his job as chief of staff in every interaction cited in the Georgia indictment,” according to Washington Post reporters familiar with the testimony.
Those interactions included Meadows’s participation in the Jan. 2, 2021, call during which Trump attempted to pressure Georgia Secretary of State Brad Raffensperger into rescinding the results of the election in that state. Raffensperger testified that he’d “seen candidates lose and have a recount, but outreach to this extent was extraordinary.” According to Meadows and his legal team, though, Meadows was simply trying to take election-denial off Trump’s calendar.
You can see the overlap with Dershowitz’s argument: If Meadows’s efforts to help Trump pressure Raffensperger were part of his duties as an aide to the president, that suggests that Trump’s efforts were also part of his official role. Never mind that Meadows could have encouraged Trump to accept the results in Georgia as a means toward “landing the plane.”
And never mind that, in his testimony, Meadows claimed that he was also working on behalf of the Trump campaign in that call with Raffensperger. The central argument is that going along with Trump’s efforts to retain power were part of the official duties of a White House chief of staff.
Paraphrasing Dershowitz: If a president does something that he believes will help him retain power in the public interest, can that be the kind of quid pro quo that results in sanction?
This question sits at the center of another recent debate. In an article published by the Atlantic, two constitutional law experts — including conservative former federal judge J. Michael Luttig — argue that Trump’s efforts to subvert the 2020 election not only are unacceptable for a sitting president but disqualify him from appearing on the ballot in 2024.
In an interview with the New Yorker’s Isaac Chotiner, Luttig insisted that Trump had clearly violated the boundaries established under the 14th Amendment, ratified in the wake of the Civil War.
“It was to disqualify persons who had previously taken an oath and then engaged in insurrection or rebellion,” Luttig explained. He added that Trump “had taken an oath to support the Constitution, and he engaged in insurrection or rebellion, or he had provided assistance, aid, or comfort to a rebellion in or around January 6th, when he attempted to overturn the 2020 presidential election.” This included his efforts in Georgia, Luttig said, and that was “a classic understanding of an insurrection or rebellion against the authority of the United States.”
(There is another party that’s opined on the legality of purported efforts to subvert election results: Donald Trump. More than once, he claimed that the investigation into Russian interference in 2016 was meant to block his victory — though that was not the case — and that such interference was a violation of the law.)
This is a question that is clearly of enormous significance: To what extent can a president be allowed to leverage his power to reject his ouster by voters? Luttig suggested to Chotiner that the issue would end up before the Supreme Court, given that it is “one of the most fundamental constitutional questions ever presented to the Supreme Court in the two-hundred-and-fifty years since the founding of the nation.”
It brings to mind another assertion from a former American president. In 1977, Richard M. Nixon sat down with interviewer David Frost.
“What in a sense you’re saying is that there are certain situations … where the president can decide that it’s in the best interest of the nation or something and do something illegal,” Frost posited.
“Well, when the president does it,” Nixon infamously replied, “that means that it is not illegal.”
Nixon meant this more narrowly than has been interpreted; he clarified some boundaries to Frost. But the phrasing has been associated with Nixon since, the idea that a president is not subject to normal boundaries of behavior.
The question was pertinent to Nixon because, as the Watergate probe showed, he’d leveraged his power in service of his 1972 reelection bid. Unlike Trump, he won easily. And then, presented with evidence of his actions and with hostility from his political allies, he resigned his position.
