Alan Dershowitz Is an Apologist for Official Misconduct

Alan Dershowitz laments that “We are surrounded on all sides by news of criminal investigations into politicians.” He sees this as a dangerous development in which political differences are weaponized by the Justice Department. He apparently doesn’t see it as part of a hitherto losing battle to enforce some basic norms and standards of good governance.

Whereas I see it as a major problem that corruption cannot even be punished in cases where convictions were initially obtained, such as in the trials of Sen. Ted Stevens, Rep. Tom DeLay and Virginia Governor Bob McDonnell, Dershowitz sees these cases as examples of prosecutorial extremism. While Dershowitz approvingly notes that New Jersey Senator Bob Menendez’s case just ended in a mistrial, I see it as absolutely appalling that such base corruption could be in any sense permissible in an elected official.

Dershowitz doesn’t devote a single word to describing what these politicians did that caused them to be charged with felonies, and I don’t see how we can debate this issue without looking at the alleged crimes.

He does, however, have some opinions about what Trump is alleged to have done:

When the president asked the director of the F.B.I. to drop its investigation into Michael Flynn, the former national security adviser, or fired James Comey from the F.B.I., or provided classified information to the Russians, he was acting within his constitutional powers. Those actions may deserve opprobrium, but they should not be deemed criminal. The proper place to litigate the wisdom of such actions should be at the ballot box, not in the jury box.

Even if it were to turn out that the Trump campaign collaborated, colluded or cooperated with Russian agents, that alone would not be a crime, unless the campaign asked them or helped them to commit criminal acts such as hacking.

I’m not going to try to argue statute by statute with a lawyer as experienced as Dershowitz, but his assertions here are exaggerated and contentious at best. It’s not legal for a campaign to take in-kind donations from foreign nationals, whether that’s a crate of staplers and envelopes or its political advertisements or its information obtained through illegal and criminal acts.

It is certainly possible for a president to obstruct justice by demanding that the Justice Department not investigate potentially criminal acts that may implicate himself. Firing the FBI director for the admitted purpose of getting the Russian investigation behind him is another form of attempted obstruction. And it’s simply not the case that the ballot box is the only place where such behavior can be adjudicated. The president can be prosecuted for crimes he commits in office once he leaves office, for example, and we have an impeachment process specifically so that we don’t have to rely on the ballot box to rid ourselves of corrupt presidents.

Dershowitz is trying to narrow down the kind of political behavior that can be prosecuted to virtually nothing, but even he is willing to allow that asking someone to commit a criminal act is itself a criminal act. Did Donald Trump not specifically request that the Russians make every effort to hack into the server of a former Secretary of State and share the contents with the world?

Ironically, that’s one of the few things Trump has done or he is alleged to have done that I’m willing to overlook. I wouldn’t prosecute him for what can reasonably be interpreted as political smack talk.

I don’t see that Dershowitz even touches on the Emoluments Clause to the Constitution or any of the central allegations included in the Steele Dossier. It’s uncontroversial that Trump is promoting his commercial properties and interests on almost a daily basis, nor that foreign countries are seeking his favor by patronizing his businesses. These are prohibited acts.

According to the Steele Dossier, Trump is compromised and subject to blackmail, he entered into an agreement for a stake in the Russian energy giant Rosneft, and his campaign wittingly colluded with WikiLeaks and Russian intelligence officers to exploit illegally obtained information from Democratic Party officials and organizations. Would all of that be legal unless Trump actually assisted in the hacking?

The president says that none of this happened and that it is all fake news. The American people deserve to know whether he is telling the truth, and the only way to figure that out is to investigate the charges. This isn’t an example of fighting ordinary political battles by other means. There are actual victims of these crimes. Privacy was invaded and careers were tarnished. The integrity of our election was impacted and our national security is implicated.

The only thing I agree with Dershowitz on is that there is a risk that things can get out of control, with each party seeking to prosecute the other rather than simply beat them in fair and square elections and above board policy disputes.

But we’re beyond that now with a president who is plausibly accused of being under the control of a foreign power that committed criminal acts in order to assist him in his campaign.

I’d also like to point out, because it needs to be said, that this isn’t Hillary Clinton’s Justice Department that’s investigating Trump. This isn’t some kind of petty payback after a nasty campaign. Inadequate as they are, the congressional investigations are chaired and controlled by members of the president’s own party. If the Republicans were to go after Hillary Clinton, I might agree that they were getting into dangerous tit-for-tat politicization of the Justice Department. That would depend on whether the allegations were real and serious or based on the kind rehashed conspiracy tripe the conservative media churn out on an hourly basis.

The investigation of Trump is different. It’s not partisan. It’s not a witch hunt. It’s not an effort to win a political battle by other means or to wound opponents out of spite.

Dershowitz says he’s a Democrat “who has supported every Democratic candidate for president since I campaigned for Adlai Stevenson in 1952.” I believe him, but I’d rather he stop trying to use that as some kind of credential. I don’t think Democrats should be soft on official misconduct, and Dershowitz doesn’t seem to have seen a politician do anything since 1952 that warranted prosecution. He should feel free to vote for a candidate from some other party. In general, our problem is not that our politics are too criminalized but that too few of our politicians need worry about being punished for egregious criminal acts.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.