13 minute read
Deconstructing Dershowitz
(July 2018)
I am a longtIme summer vIsItor to martha’s vIneyard, But I do not know Alan Dershowitz personally. I have never invited him or disinvited him to dinner, although I have seen him holding court on the porch at the Chilmark Store. And as a lawyer, I am familiar with his remarkable career.
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But I have read recently about his “j’accuse” against certain Vineyarders for making him the victim of McCarthyism. In addition, he has been defending publicly what he considers to be the constitutional rights and civil liberties of President Trump, claiming that the recent revocation of the bond and jailing of Trump’s former campaign manager, Paul Manafort, is illegal; and claiming that the FBI raid on the home, office, and hotel room of Trump’s former lawyer Michael Cohen was unconstitutional. All of these claims invite a reasoned analysis and response from a fellow Vineyarder, native Brooklynite, and lawyer, so here goes!
McCarthyism on Martha’s Vineyard
Dershowitz has complained, “I never thought I would see McCarthyism come to Martha’s Vineyard, but I have,” referring to the social snubbing he says he has received here because of his defense of Donald Trump.
I have examined many definitions and examples of McCarthyism but was unable to find anything remotely close to the conduct that Dershowitz accuses his former friends of engaging in being described that way. As Dershowitz well knows, McCarthyism was the process whereby Senator Joseph McCarthy and others, in the 1950s, made public accusations of individuals’ Communist Party membership or sympathies, as well as treasonous activities, which resulted in the discharge or blacklisting from employment, or the prosecution and jailing, of vast numbers of Americans. As put by a recent letter writer to The New York Times (July 5, 2018):
No one is making false accusations against [Dershowitz] or accusing him without evidence of treachery. No one is threatening to imprison him if he doesn’t denounce his friends. No one is denying him a living or threatening to harm him.
We are living through one of the darkest moments in our nation’s history. For Dershowitz to accuse people on the Vineyard of McCarthyism is pure demagoguery and group defamation. What Dershowitz is complaining about is the fact that many people find his actions and statements in support of the most reprehensible, dishonest, and reactionary president in our history to be beyond the pale of reasoned discourse. One of our remaining freedoms is to be able to end friendships, which may be painful for all concerned. But accusing former friends of McCarthyism because they wish to unfriend Dershowitz is simply an additional reason for others to do so. Thus it is a self-inflicted wound.
Even further, it is bizarre for Dershowitz to say (which he has) that because he is being ostracized by his former friends for aiding Trump, it is they who thereby are aiding Trump. Sadly, as in too much else, his logic is Trumpian, and it unfairly disparages a community whose values are deeply thoughtful and caring. Being shunned by old friends is painful. The numerous recent incidents of shaming involving Trump administration figures at restaurants and elsewhere demonstrate how deep the divide in our country has become because of the extremely divisive behavior of President Trump. The litany of Trump’s lies, abuses, and misdeeds needs no repetition here. But hopefully a time will come when we can all look back on this nightmarish period honestly and try to come together for the greater good of our country, its people, and the world. I look forward to that time, but I fear it may not be arriving anytime soon if Donald Trump and Alan Dershowitz continue their destructive courses.
So as to McCarthyism on the Vineyard, if it exists, it consists of Dershowitz being Trump’s Joe McCarthy.
Dershowitz on Impeachment
Dershowitz claims that President Trump may not be charged with a crime while in office; that the sole basis for his impeachment by the House of Representatives would be the commission of a crime; that to be removed from office, he must be convicted of such crime by a two-thirds vote of the Senate after a trial; and that a president’s motives may not be considered in judging his actions, such as granting pardons or discharging employees. In his latest book, out this month, Dershowitz tries to make “The Case Against Impeaching Trump.” And he repeatedly has asserted that “you can’t remove or impeach a president for malpractice in office.”
Similarly, as to whether Trump colluded with the Russians to sway the 2016 election, in a media interview in New Zealand in
March of this year, Dershowitz said there was no question that Russia meddled in the election, and he further acknowledged that he did not know whether Trump did collude but said that if he did, “it would be terrible, but not a crime” and therefore would not be an impeachable offense.
In fact, however, the claim that the president must be guilty of a crime in order to be impeached is without foundation. Article II, Section 4, of the Constitution declares that “the President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Thus, in a June 2018 article in the conservative Federalist Society Review (available online), Professor Robert C. Natelson, a leading constitutional scholar, concluded on the basis of extensive historical research regarding the term “high . . . Misdemeanors” as follows:
We best capture the meaning of the phrase “high . . . Misdemeanors” when we think of it as referring to breaches of fiduciary duty. High misdemeanors are not limited to commission of crimes, but they do not include mere political differences. While violations of the criminal law provide grounds for impeachment, high misdemeanors encompass breaches of the duties of loyalty, good faith, and care, and of the obligations to account and to follow instructions (including the law and Constitution) when administering one’s office.
Many other constitutional law experts—including Professors Lawrence Tribe and Cass Sunstein, both of the Harvard Law School, and American University Professor Allan J. Lichtman, in his 2017 book, The Case for Impeachment (of Donald Trump)— agree that egregiously wrongful acts that are not criminal in nature may nonetheless be the basis for impeachment. As put
by Alexander Hamilton in 1788 in The Federalist Papers (number 65): Impeachment will “proceed from the misconduct of public men, or, in other words, of the abuse or violation of some public trust,” and “they relate chiefly to injuries done immediately to the society itself.” Similarly, at the Constitutional Convention, James Madison said that the impeachment provision was necessary because it was
indispensable that some provision should be made for defending the Community agst. [sic] the incapacity, negligence or perfidy of the chief Magistrate. . . . He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.
Finally, Federal Appeals Court Judge Brett M. Kavanaugh, who has been nominated by President Trump to the Supreme Court, wrote in a 2009 law review article that there is always a way to remove a “bad-behaving or law-breaking President. . . . If the President does something dastardly, the impeachment process is available.” (Emphasis added.)
Thus it is clear that Dershowitz’s view is mistaken that criminal behavior is a requirement for impeachment.
Similarly, Dershowitz asserted recently that “you cannot question a president’s motives when [he] acts,” in connection with proving that he has committed a crime. Thus Dershowitz argues that a president may fire an employee, such as former FBI head James Comey, or pardon someone, and his motives may not be examined in order to prove, for example, that he has engaged in obstruction of justice. The flaw in Dershowitz’s reasoning, as pointed out recently by Professor Lawrence Tribe, is that the Constitution expressly makes the crimes of treason and bribery specific grounds for impeachment, both of which require proof of motive. For example, imagine a president who
grants a pardon or appoints a federal judge in exchange for a cash payment.
Last summer, with friends, I began collecting an inventory of acts by President Trump, some of which might ultimately be determined to warrant impeachment but at a minimum constitute breaches of trust and fiduciary obligations, as well as egregious behavior, which separately or collectively warrant censure by both the House and Senate. Among many others, President Andrew Jackson and Senator Joseph McCarthy were censured by the Senate on grounds far less egregious than those committed by Donald Trump while in office. Our grounds for censure now number almost fifty and are collected at censuredonaldtrump.com. They have garnered over sixty thousand signatures and will be delivered to all Senate and House members. They include his contempt, abhorrence, and lack of respect for the rule of law; his disparagement and ridicule of federal judges, members of Congress, and his political opponents; his continuous lying to the public and the press; his continuing to receive profits and benefits from foreign governments in violation of the Constitution’s Emoluments Clause; his unending attacks on the press as “the enemy of the people”; his efforts to undermine the Justice Department and its Mueller investigation; and his racist and sexist remarks and actions—to mention just a few.
The Jailing of Paul Manafort
Recently, Paul Manafort, Trump’s former campaign manager, after having been indicted in the District of Columbia for multiple federal crimes and released on a $10 million bond, had his bond revoked by a judge, based upon evidence that while he was awaiting trial, he sought to corruptly influence two potential witnesses in his case. Special Counsel Robert Mueller obtained an additional indictment against Manafort for engaging in this activity, and the judge ordered his incarceration, based upon the evidence presented
to her by Mueller. Manafort presently is in federal prison in Virginia, pending trial in another case.
Alan Dershowitz attacked the jailing of Manafort as being “very, very unfair,” an “outrage,” and “obnoxious to our Constitution.” Dershowitz argues that Manafort is “no more guilty of contacting witnesses or attempting to obstruct justice than any of us.” He declared that “we should not be denying bail to poor people, rich people, or anyone in between, before they’ve been convicted of any crime. These are presumed innocent people.”
Dershowitz is correct that the bail system is unfair, but the unfairness favors the rich such as Manafort, who was required to, and was able to, post a $10 million bond. In fact, more than half of the hundreds of thousands of people who are in jail at any given time are there awaiting trial, and the reason they are there is mostly because, unlike Manafort, they cannot afford bail. Manafort was granted bail, but it was rescinded because of evidence that he had committed another, related crime while free, which is one of several grounds for legitimately canceling bail. Indeed, upon revoking Manafort’s bond, Judge Amy Berman Jackson declared, “I cannot turn a blind eye” to the way Manafort betrayed “the [court’s] trust.” She added that although there is “no evidence of even a threat of harm to any person” by Manafort, “the harm from the new charges” (of attempted subornation of perjury) is “harm to the administration of justice” and “to the integrity of the system.” An outrage? I think not!
The Michael Cohen Search Warrant
As to the FBI raid on the office, home, and hotel room of then Trump lawyer Michael Cohen on April 9 of this year, Dershowitz maintained that the raid violated Trump’s attorney-client privilege and the Fourth and Sixth Amendments to the Constitution, which protect individuals from illegal searches and seizures and guarantee
their right to counsel. For a search to be lawful, there must be a warrant issued by a court, based upon reasonable cause, presented under oath to a judge and describing the material sought. In the case of the FBI raid seeking Cohen’s records, such a warrant was issued. Indeed, it was signed off on by Deputy Attorney General Rod Rosenstein. Thereafter, a federal magistrate issued the search warrant.
As to the seized documents, a retired federal judge, who is serving as a special master, has concluded thus far that of the hundreds of thousands of Cohen’s documents seized by the FBI, less than one-tenth of 1 percent are subject to the attorney-client privilege. This is partly because the scope of the attorney-client privilege generally is quite narrow and is limited to the seeking and giving of legal advice. But Cohen’s records included documents related to his vast dealings in real estate, taxicabs, and beyond.
When NPR’s Scott Simon asked Dershowitz whether the FBI seeking material relating to the “Access Hollywood” tape and the Karen McDougal matter were “fair game,” Dershowitz replied:
No, no, no. Not good enough to get a search warrant of a lawyer’s office. To get a search warrant of a lawyer’s office, you should be looking for Mafia-type drug connections, major corporate crimes. To use that nuclear weapon, and it’s used very, very rarely—a search of a lawyer’s office—on what seems like rather technical criminal charges sounds like a lack of proportion.
In support of his position, Dershowitz has paraded the horrible instance of interference with the doctor-patient relationship through government searches of doctors’ offices. But in fact, such searches are common in the face of vast Medicare and Medicaid fraud by doctors, which cost the government and taxpayers huge amounts annually. Indeed, criminal convictions of doctors in such cases are common.
Dershowitz claims to be the guardian of the civil liberties of all, but he told NPR at the time of the raid on Cohen’s offices that he was “not worried about the rights of the allegedly crooked lawyer or doctor or priest.” Apparently, he was suggesting that Cohen did not “fill that bill” and that Cohen was entitled to greater protection and deference. But here’s what Attorney Cohen himself told ABC News in 2011: “If somebody does something Mr. Trump doesn’t like, I do everything in my power to resolve it to Mr. Trump’s benefit. If you do something wrong, I’m going to come at you, grab you by the neck and I’m not going to let you go until I’m finished.”
Surely, Cohen sounds much more like a “fixer” and “enforcer” than a lawyer! Indeed, not even Tom Hagen, the consigliere of the Corleone family, was ever heard to speak this way.
Finally, that Cohen used his law office as the locale for his extensive business dealings and other non-privileged conduct and documents cannot serve to shield him from a lawful search regarding such matters.
Conclusion
As to the foregoing issues and others, the problem with Professor Dershowitz is that he simultaneously has worn two inconsistent hats throughout his career. These are the scholarly hat of a professor of law and the adversarial hat of a criminal defense lawyer. And he has sought to parlay his respected academic self to advance his adversarial self as a means of supporting his cases and causes. There is no question that he is a voluntary advocate for President Trump, and not an academician helping the public understand the law. Law professors do teach law students to be advocates, but as teachers they must have a commitment to the truth as they see it. In contrast, advocates are expected to put the strongest case forward for their clients and leave its weaknesses to opposing counsel. But here Professor Dershowitz is advocating for Trump even though he
is not his lawyer, and he is not merely explaining some “neutral” legal principles. However, he expects his representations to be accepted as correct, based upon his academic credentials. I am not suggesting that a law professor should never be an advocate but, rather, that the adversarial habits of Professor Dershowitz prevent him from honestly bringing to bear in these critical matters his academic angle of vision, which would require him to tell the public the full story. And indeed, at a time when most liberals and even some conservatives are deeply worried about the fact that Trump is the greatest presidential threat to civil and human rights and liberties in our history, Alan Dershowitz has become a staunch defender of his unlimited and unbridled exercise of power.
