“I cannot accept the double standard.” Here Alan Dershowitz is referring to a beef with a local library; yet it sets the tone for his entire righteous crusade against leftist prosecutorial overreach. Dershowitz’s Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law gives a measured legal argument as to why the left’s attack of Trump and almost all his associates violates civil liberty protections. No Republican himself, Dershowitz stands on principle– while the ACLU is nowhere to be found. A motif of Get Trump is an elegant heuristic: the “shoe on the other foot test.” If the right did this to Democrats, how would they respond?
“No one is above the law,” liberals repeat in unison online and on TV after Trump’s indictment. This mantra is at a low-level intellectually: “Everyone plays by the same rules.” Yet as anyone with an ounce of critical thinking would know, this is not the right frame through which to analyze the prosecution of Trump. There are many gray areas in the law, and whether or not to charge someone is often a matter of opinion. It could easily depend on partisan motivation, especially when the subject is a high-profile politician:
“...statutory crimes such as conspiracy, obstruction, RICO, espionage, sedition, mishandling of secrets, and election laws are vague enough to allow partisan abuse of discretion.”
The Nixon and Clinton Standards
In order to indict someone at the stature of a former president, one needs “bipartisan consensus.” In the case of President Richard Nixon, even Republicans in Congress considered his crimes serious enough to merit him resigning. This is not the case with Trump because Republican politicians still support him, and Republican voters largely still support him. If I’m wrong and they don’t support him, they’ll have a chance to express that in the Republican primary.
Clinton was not indicted nor convicted of anything. Were Trump’s supposed crimes concerning federal election law more grave than her crimes– deleting subpoenaed email communications? One has to use the same standard, given that the Clinton investigation was so recent. One might say the charges against Trump and Clinton are similar, in that they are technical violations for which intent is hard to establish. Clinton’s transgressions seem more brazen, but Dershowitz sees it as basically a wash. Given that Clinton was not charged, and the investigation into her was within recent memory, the shoe on the other foot test tells us that it was unjust to charge Trump. This is “The Clinton test.”
Clinton, rightfully in Dershowitz’s view, was not indicted for her actions in the FBI’s email investigation. Despite the fact that there was enough evidence to indict Clinton, Dershowitz still feels it would have been improper to indict in that circumstance. The question is not whether one could indict Trump or Clinton, the question is whether one should. Nixon was rightfully facing indictment and impeachment based on the bipartisan condemnation of his behavior. On the other hand, by the precedent of the Nixon and Clinton standard, Trump should not have been indicted.
Recall the controversy about Trump holding classified documents in Mar-a-Lago and the ensuing FBI raid. Funny that Biden was revealed to have the same transgression, conveniently disclosed by the Justice Department after the 2022 midterm election. Did the Justice Department only do so because they caught wind that the media had the story? Regardless, now that Biden has not been charged for a very similar infraction–holding classified documents after his time in office–AG Merrick Garland could not conceivably charge Trump with the same infraction.
The standard, in Dershowitz’s view, ought to be “malevolent intent.” To the extent that Biden or Trump might have violated the Presidential Records Act, it was probably due to laziness or convenience; nothing approaching what should be prosecuted criminally. Nonetheless, Garland was forced to appoint a special counsel to investigate Biden’s handling of classified material simply because he had done the same with Trump. Clearly nothing will come out of the special counsel’s investigation of Biden.
The fact that President Trump’s home was raided by the FBI is something that the public should not forget now that it is out of the news cycle. It was a deeply troubling action on the face of it.
The raid on Mar-a-Lago was highly improper in Dershowitz’s view. That Merrick Garland was able to get a search warrant doesn’t tell us much, because search warrants are easy to obtain–just as indictments are easy to obtain. The search warrant itself was improper given how broad it was, giving little limit on which physical areas of Mar-a-Lago could be searched, including Melania Trump’s closet (reportedly). This raises 4th Amendment constitutional issues.
Why didn’t Garland just subpoena the documents? This would have been a much more proportional way to go if this was really about the documents at hand. Perhaps this is because the 5th Amendment protections would prevent documents that Trump produced from being used to incriminate him. It’s a fairly complex legal distinction which nonetheless Dershowitz discusses with clarity. At any rate, Merrick Garland may have gotten away with this unprecedented raid of a former president’s home, but he didn’t necessarily win in the “court of public opinion.” And it certainly doesn’t pass the Nixon and Clinton standard, given that Clinton’s home was not raided for comparable violations.
At issue in the Mar-a Lago raid is classified documents that Trump has in his possession. At least, this was the pretext. The right of executive privilege is also at issue in this case. The Biden Administration is arguing that Biden has the right to waive Trump’s executive privilege. One doesn’t hear much about this rather surprising detail in the classified document dispute. Dershowitz asks: How would the general public respond if Trump decided to waive Obama’s right to executive privilege on documents that would have helped Trump electorally? To ask the question is to answer it.
Would it be proper to indict Trump based on the Presidential Records Act, a law that has never been used against anyone? Of course not. Rather, if you’re going to charge the man likely running against the incumbent president, you need a much higher standard: “It has to be standard laws that have been enforced for many, many years against many people of both parties” (85). When the Democrats start talking about the Presidential Records Act, it becomes pretty clear that they’re making it up as they go just to “Get Trump.”
The Mar-a-Lago raid raises the obvious question: How was Hilary Clinton treated in a comparable scenario? Yes, I’m referring to “her emails.” To be more specific, her unauthorized use of a personal server and her failure to turn over the subpoenaed documents to Congress. Under these circumstances, conceivably, the Justice Department could have raided Hilary Clinton’s private home and executed a search warrant. Yet they didn’t. Yet they raided Trump for something arguably more petty–supposedly classified documents that no one even knew or cared about.
Also at issue in the Mar-a-Lago raid is the separating of documents with attorney client privilege. Garland’s Justice Department wanted to use a special team within the FBI to separate the documents. Dershowitz makes the point that this special team could conceivably be having lunch with the same FBI prosecutors on the case against Trump. Are we really to believe the FBI’s special team wouldn’t communicate to the prosecutors if they happened upon something juicy and incriminating that was also under attorney client privilege?
In his defense of civil liberties and free speech, Dershowitz is serving the function of the ACLU when the ACLU has abdicated its responsibilities. The ACLU is happy to fight for the rights of protected classes of minorities, with whom presumably they assume to take on common political cause. But a perceived right-wing politician or president? In that case the ACLU is not so universal in its consideration of constitutional rights. This is a grave problem if the ACLU purports to care about civil liberties. Dershowitz states repeatedly that he didn’t vote for Trump–he’s a Democrat! As the ACLU used to do, Dershowitz’s philosophy is that one shouldn’t have to agree with an individual to protect their civil rights. Likewise, one cannot claim that we are in special circumstances which somehow necessitate the suspending of civil liberties–because liberals really don’t like Trump. This fallacy has led to suspending of civil liberties throughout American history.
When we ask how the political class might respond in the “shoe on the other foot” test, leftists will call it “whataboutism.” To which I would say, “Yes, what about it?” If you would like to indict Trump and his associates for an alleged crime, just be sure that you’re willing to accept that standard for Democrats and their allies (obviously Biden’s Justice Department wouldn’t dream of investigating liberal figures in this manner).
Dershowitz explains how corrupt the media, academia, and politics have become in their abandonment of principle:
“Arguments aren’t made on their merits or demerits. The only criteria are which side is benefited by how the issue is decided. And winning argument on its merits will be attacked if it benefits the wrong person or party. A losing argument will be praised if it benefits the right person or party.”
NY Attorney General’s Office
The shoe on the other foot test can also be applied to the New York AG’s opening an investigation into the NRA. Dershowitz makes it clear he doesn’t personally support the NRA (though he supports the 2nd Amendment). Yet would the New York AG go after liberal nonprofit groups such as Planned Parenthood with this much zeal? It’s just another example of the left going after conservatives with no regard for civil liberties, and without even a pretense of applying the law equally.
Dershowitz makes the point that the shoe will be on a different foot in the future: A conservative AG could investigate a liberal charitable organization. But strangely, that never seems to happen. Throughout Get Trump, Dershowitz ominously warns that right-wing Republicans will play tit-for-tat in the future and persecute left-wing groups in a similar manner. Yet we see no example of this, which shows that the right just doesn’t like to fight dirty as liberals do. If you this argument is unfair, recall that Trump was investigated…by his own Department of Justice.
The double standards have even touched Dershowitz’s personal life. He has been disinvited from speaking at the Chilmark library on the dubious pretext that the crowds he attracted were “too large” The real reason is obviously for Dershowitz’s defense of Trump during what he considers an unconstitutional impeachment process. What if a Texas library only wanted to allow Trump supporters to speak? Would liberals be ok with that? Again, the shoe on the other foot looks quite different.
Trump has wondered aloud whether maybe Dershowitz really does vote for him but just says he doesn’t to gain a little cover. It’s funny to imagine that might be true. Yet Dershowitz doesn’t have a conservative or populist bone in his body. When he says he’s a liberal, one tends to take that at face value. For him, the principles of our Constitution are most important, not the political party of the individual in question. This is what makes Alan Dershowitz a rare liberal public intellectual with integrity.
See Part II of my analysis of Get Trump
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