Given the nonstop investigations and news fatigue, there is only a vague remembrance of woeful misconduct by the investigators into Donald Trump and his associates. Each outrage tends to crowd out the last, a news cycle passes, and one moves on with their life, regardless of if an injustice has been committed. Recall that before Trump was indicted and arrested, there was the Mar-a Lago raid of Trump’s house, the raid of former mayor Rudy Giuliani’s office and his disbarment, the indictment of Roger Stone for process crimes in the Mueller investigation, and so on. A lot has transpired.
Alan Dershowitz’s Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law clearly and compellingly delineates all the instances of abuse so that one does not forget, but rather feels indignation anew.
When the Founding Fathers established the 1st Amendment, they were aware of its downsides.
As Dershowitz puts it, it’s not necessarily Republicans vs. Democrats on these issues affecting civil liberties. It’s Trump vs. Anti-Trump. This is why the media can give the false impression of objectivity: by having Anti-Trump Republicans as the purported opposition on their platforms and shows.
Get Trump is a relatively thin book, but dense in terms of its substance and its incisive legal arguments.
The Mueller Investigation
The Mueller Investigation made a habit of finding process crimes rather than crimes related to actual Russian collusion. This is to say that the “crimes” the Mueller team found were obstruction of justice and the like. They charged people with not properly complying with their own investigation. This was the case with Roger Stone who suffered that absurdly disproportionate pre-dawn raid and arrest at his house, which CNN was somehow alerted to in advance.
Dershowitz offers a more reasonable manner to address allegations of Russian Collusion: Better if a nonpartisan committee were tasked with investigating the matter. This would have been more appropriate than the ruthless partisans who were on Mueller’s team. The Mueller team’s work was obviously a source of partisan cheerleading, and no fair observer could say it was conducting itself in a disinterested fashion. Dershowitz declares with eloquent understatement:
“It is difficult to declare the investigation a success…” (37).
Dershowitz did not support efforts to question and fight the 2020 election. He believes simply that Biden got more votes. That said, he also does not believe that lawyers who filed lawsuits on behalf of Trump’s election grievances ought to be punished as they were. The “65 Project” sought to “destroy the careers” of 111 lawyers involved in briefs surrounding the 2020 election (46). This a type of McCarthyism.
Dershowitz represented Mike Lindell, who was raided by the FBI, along with many other Trump associates. It was highly improper and a breach of the 4th Amendment that the FBI should confiscate Lindell’s phone, apparently making no effort to separate what might be relevant material from his otherwise personal matters. We have our whole lives on our phone; it is therefore dubious that the FBI should take the device of such a high-profile political figure such as Lindell.
Despite the fact that Dershowitz believes that the 2020 election was in fact legitimate, he considers that if Trump wanted to challenge the election, there were constitutional ways to do so. For one, he could have had Mike Pence reject the electors from the contested states. In fact, that is just what Trump sought to do (perhaps on advice from Dershowitz?). Yet Pence refused to do so, and the rest is history.
Trump was impeached for “incitement of insurrection” in 2020, something that hardly fits the constitutional requirement for impeachment, “high crimes and misdemeanors,” such as bribery or treason. Dershwitz is generally against impeachment as it has been used by both political parties in both the cases of Trump and Bill Clinton. One must admit they were both highly politicized and not likely what the founders had in mind for the impeachment process. Trump was acquitted by the Senate in both impeachments.
According to Dershowitz, the January 6 Committee in Congress had little legitimacy. To the extent that they presumed to make any criminal referrals to the Justice Department, they stepped out of their lane as a legislative body:
“First, Article 1 of the Constitution grants Congress “all legislative powers” and only “legislative powers…Under our system of separation of powers, the power to prosecute lies exclusively with the executive branch through the Justice Department.”
Furthermore, the fact that both political parties were not represented on the committee, as is tradition, further made it farcical. And no, Kizzinger and Cheney, handpicked by Democrats, does not make the committee bipartisan. It’s good to know that even liberals such as Dershowitz could see through that ruse.
Deshowitz explains that the ACLU used to be more of a fair protector of the 1st Amendment. In fact, he himself used to sit on the board. But their politically correct insistence on meeting diversity requirements for the board of directors changed the character of the organization:
“Unsurprisingly, the organization stopped prioritizing free speech and due process. Instead, it began to prioritize a woman’s right to choose, gay marriage, racial issues, and “progressive politics.””
The idea of giving legal representation of unpopular parties is part of what the American justice system is all about. Dershowitz frequently cites future president John Adams representing a British soldier in the Boston Massacre. Likewise, the ACLU famously defended Neo-Nazis’ right to march in the Skokie trial. But that ACLU doesn’t exist anymore.
Freedom of Speech
Though it is so rare for a liberal these days, Dershowitz is a steadfast defender of free speech. On Twitter, which has become our public square, he notes how important freedom of speech is. Some argue that Twitter needs to censor “hate speech.” But this phrase is so ambiguous as to effectively cancel free speech. Who gets to define “hate speech”? What a leftist has to say might be “hateful” for the other side. Should we then cancel their free speech?
Of course, Twitter is not the government and is therefore not required to give its users 1st Amendment protections. But they can to embrace the spirit of the 1st Amendment, which Elon Musk has admirably sought to do. Let the marketplace of ideas work, or else the process of sorting so-called misinformation would be fraught with bias. When the Founding Fathers established the 1st Amendment, Dershowitz explains, they were “aware of its downsides” (64).
Perhaps adjacent to the debate about free speech is a great insight by Dershowitz into the nature of our political discourse: We are all so sure that we are right, and so intolerant of viewpoints other than our own:
“If one is certain of the absolute correctness of his views, he often sees no need for the right to dissent or the need for due process.”
Dershowitz even opposes banning Kanye West for his bizarre post in which he transposed a swastika over a star of David. Though Dershowitz finds this post “beneath contempt,” he still maintains that this falls under freedom of expression. Musk at the time identified it as “incitement to violence.” Yet incitement is rarely in written form. Rather, incitement is typically a verbal exhortation to violence, given the immediacy that is required to actually incite someone to take violent action. Get Trump was published prior to Kanye West’s other inflammatory statements, such as that he “loves Hitler.” Yet one imagines that Dershowitz would also find that this is also covered by the 1st Amendment, though he would certainly deplore that sentiment himself.
Dershowitz also takes issue with Merrick Garland’s investigation of parents protesting at school board meetings. Far from inciting violence or making direct threats, the parents were expressing a legitimate opposition to the teaching of critical race theory, as well as complaints about wearing masks. Dershowitz explains that “raucous protests” also fall under protected speech. He further wonders whether Garland is not in danger of appearing partisan, given that he has not sent the FBI to investigate “equally dangerous left-wing activities” such as BLM (121).
Recall that Trump was impeached the second time for supposedly inciting the January 6th riot at the Capitol. Dershowitz does find that this speech was “incendiary,” yet it falls well within the bounds of the 1st Amendment. In that sense, the entire impeachment was in contradiction to constitutional rights.
Dershowtiz refers to a petition at Harvard Law School which seeks to warn those who are affiliated with Trump that they won’t be welcome at Harvard Law School and will be outcast. Such collaborators with Trump would be denied access to the “revolving door to success and prestige” which Harvard Law School affords them. This is also akin to Mccarthyism.
Free speech encompasses not just your right to speak, but also your right to hear the speech of another. When a university bans a speaker, or any other victim of cancel culture, that not only impacts the speaker whose speech has been squelched, but also the person who is now denied the right to hear that speech.
It wasn’t Dershowitz’s defense of Jeffrey Epstein that his liberal friends found shocking. He was still accepted in his social circles after that. It was only after his defense of Trump’s civil liberties that Dershowitz was shunned. Perhaps that shows the real dividing lines in what may be considered civil discourse: who is targeted for cancellation and even prosecution.
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