The Case Against the Democratic House Impeaching Trump

by Alan Dershowitz

  It’s not too late to try to repair some of the damage done. Let Congress now appoint a nonpartisan commission to conduct a transparent investigation of Russia’s efforts to influence our elections. Let the Special Counsel suspend his investigation until the nonpartisan commission issues its report. If the report identifies crimes and criminals, there will be time enough to indict and prosecute. Right now, we need the nonpartisan truth, because we aren’t getting it from the Special Counsel.

  Accountability, Civil Liberties, and Michael Cohen

  I believe that it is the special responsibility of decent conservatives and liberals alike to condemn and marginalize extremists and bigots from either side. This condemnation must be rightly directed to the offending party—such as toward the Nazi and KKK demonstrators in Charlottesville—as opposed to trying to evenhandedly condemn all parties as when President Trump condemned the same display of hatred, bigotry, and violence shown by demonstrators “on many sides.”

  Meanwhile, civil libertarians sit on the sidelines as President Trump and his allies have their Fourth and Sixth Amendment rights violated. Consider President Trump’s lawyer, Michael Cohen, whose law office and hotel room were raided by FBI agents who may have seized material protected by lawyer-client privilege. I condemn the double standard of the American Civil Liberties Union that has turned from a neutral civil liberties organization to a left-wing, agenda-driven group that protects its contributors and constituents.

  In the essays and transcript that follow, I explain that prosecutors and FBI agents create firewalls and taint teams to preclude privileged information from being used against the client in a criminal case. Instead, to protect privileged communications between lawyer and client, doctor and patient, priest and penitent, or husband and wife, I argue for judicial officers, trusted not to leak information, to accompany FBI agents on their raids. I am grateful that Judge Kimba Wood—who was my student back in the day—did appoint a former judge to serve as a taint monitor.

  Finally, I point out what I call an epic battle for the soul and cooperation of Michael Cohen. On one side, prosecutors have an array of weapons at their disposal. On the other, the president has the power to pardon. What will ultimately happen can only be surmised at this point.

  The President Has a Special Obligation to Condemn the Racist Right20

  All decent Americans have an obligation to condemn the violent bigotry of the Nazi and KKK demonstrators in Charlottesville or wherever else they spew their poisonous and threatening rhetoric. But President Donald Trump has a special obligation to single out for condemnation, and distance himself from, individuals and groups that claim—even if falsely—to speak in his name, as the racist provocateurs in Charlottesville did.

  David Duke, the notorious bigot, told reporters that white nationalists were working to “fulfill the promises of Donald Trump.” Richard Spencer, the founder of the Daily Stormer (a not-so-coded homage to the Nazi publication Der Stürmer,) attributed the growth of the ultra-nationalist alt-right to the Trump presidency: “Obviously the alt-right has come very far in the past two years in terms of public exposure … is Donald Trump one of the major causes of that? Of course.”

  Trump initially responded as follows: “We must ALL be united and condemn all that hate stands for. There is no place for this kind of violence in America.” But then, following the car ramming that killed a peaceful protester, President Trump made the following statement: “We condemn in the strongest possible terms this egregious display of hatred, bigotry, and violence on many sides—on many sides.”

  President Trump’s inclusion of the words “violence on many sides”—which seemed improvised—suggested to some a moral equivalence between the Nazis and the KKK, on the one hand, and those protesting and resisting them, on the other hand. Trump denied that he was suggesting any such equivalence and subsequently made the following statement: “Racism is evil. And those who cause violence in its name are criminals and thugs, including KKK, Neo-Nazis, White Supremacists, and other hate groups, are repugnant to everything we hold dear as Americans. Those who spread violence in the name of bigotry strike at the very core of America.”

  But a day later, he seemed to double down on his attempt to be evenhanded in his comments about the “many sides” of this conflict. He pointed to “very fine people on both sides,” implying that Nazis and Klansmen could be “fine,” because their protests were “very legal.” Then he denounced “alt-left” groups that were “very, very violent.” Once again, he blamed “both sides,” and asked rhetorically, “what about the ‘alt-left,’ that as you say, came charging at the alt-right? Don’t they have any semblance of guilt?”

  David Duke immediately praised President Trump’s condemnation of the “alt-left,” thanking him “for your honesty & courage to tell the truth about #Charlottesville & condemn the leftist terrorists in BLM/Antifa.”

  Finally (though nothing this president ever tweets is final), President Trump praised the anti-racist “protestors in Boston who are speaking out against bigotry and hate.”

  It is against this background that the president’s back-and-forth statements must be evaluated.

  Even if it were true—and the evidence is to the contrary—that Black Lives Matter and Antifa were as blameworthy for Charlottesville as the Nazis and KKK, it would still be incumbent on President Trump to focus his condemnation especially on the violent racist right that claims to speak on his behalf. The hard-left—which does, in part, include some violent and bigoted elements—does not purport to speak on the president’s behalf and does not claim to be trying to “fulfill the promises of Donald Trump.” To the contrary, they oppose everything he stands for.

  This situation poses a delicate dilemma for President Trump. He has denounced the ideology of the violent racists on the alt-right who claim to be acting in his name—not quickly or forcefully enough. And he has declared his opposition to “racism” and specifically to “those who cause violence in its name,” who he has called “criminals” and “thugs.” He specifically included within these categories the “KKK, Neo-Nazis, [and] White Supremacists,” the very groups that purport to speak in his name.

  Why is that not enough? Why should he not at the same time condemn the alt-left for its violence? These are reasonable questions that require nuanced answers. Let me try to provide some.

  I have long believed that it is the special responsibility of decent conservatives to expose, condemn, and marginalize hard-right extremists and bigots. William Buckley showed the way when he refused to defend Patrick Buchanan against charges that what he had said amounted to anti-Semitism. Other decent conservatives followed Buckley’s lead and marginalized anti-Semites and racists who expressed bigotry in the false name of conservatism.

  I also believe that it is the special responsibility of decent liberals to do the same with regard to hard-left bigoted extremists. I must acknowledge, as a liberal, that we have not done as good a job as decent conservatives have done. Perhaps this is because hard-left extremists often march under banners of benevolence, whereas hard-right extremists tend not to hide their malevolence.

  Consider, for example, Antifa, the radical hard-left group, some of whose members violently confronted the Nazis and Klansmen in Charlottesville. As reported by the New York Times, the organization comprises a “diverse collection of anarchists, communists, and socialists” with its “antecedents in Germany and Italy.” According to the Times, “Its adherents express disdain for mainstream liberal politics” and support “direct action” by which they mean “using force and violence,” rather than free speech and civil disobedience. Their leaders claim that violence is necessary because “it’s full on war.”

  Nor is this merely rhetoric. On university campuses, particularly at Berkeley, “black-clad protestors, some of whom identified themselves as Antifa, smashed windows, threw gasoline bombs and broke into campus buildings, causing $100,000 in damage.” They model themselves on the “Weathermen” of the 1970s, who wer
e responsible for numerous acts of violence.

  They claim to be using counterviolence in defense against the violence of Neo-Nazis and Klansmen, but that is not true. They also use violence to shut down speakers with whose worldviews they disagree; they include not only right-wing extremists, but also mainstream conservatives, moderate Zionists, and even some liberals. They reject dialogue in favor of intimidation, and force.

  As a liberal, I will not give these hard-left violent bigots a pass. It is true that the Nazis and KKK are currently more dangerous in terms of physical violence than hard-left groups. (It is also true that the most violent groups by far are radical Islamic terrorists, who are not the targets of Antifa protests.) But the violence of the racist right (and radical jihadists) must not lead us to ignore the reality that Antifa and its radical allies pose real danger to the future of our nation, because of their increasing influence on university campuses where our future leaders are being educated. The recent events in Charlottesville and elsewhere have made them heroes among some mainstream liberals, who are willing to excuse their anti-liberal bigotry because they are on the barricades against fascism.

  It’s far too easy to self-righteously condemn your political enemies when they step (or leap) over the line to bigotry and violence. It’s far more difficult to condemn those who share your wing, whether left or right, but who go too far. But that is what morality and decency require, as Buckley taught us.

  So, President Trump must stop being evenhanded in his condemnations. He should focus his condemnation on extreme right-wing bigots who speak and act in his name and leave it to those of us on the left to focus our condemnation on left-wing extremists and bigots.

  Enough with the Anti-Trump McCarthyism!21

  [Talia Lavin wrote an article accusing me of being a “Trump Jew” who should remember that as a Jew, I’m a “guest” in America. I responded.]

  I don’t know what is worse about Talia Lavin’s article calling me a Trump Jew: is it her blatant McCarthyism or her insistence that Jews behave like “guests” in an alien country?

  Let’s begin with her mendacious McCarthyism: I am not a Trump Jew. I voted, campaigned, and contributed against Trump and for Hillary Clinton. I have criticized many of Trump’s policies and statements. I am not his lawyer. I have never provided him with “legal advice.”

  I am doing what the ACLU is failing to do: defending the constitutional rights of all Americans, including this president’s. I would be doing the same thing had Hillary Clinton been elected president and Republicans were trying to “lock her up.”

  When, as a student at Brooklyn College, I defended the right of communists to speak, McCarthyists called me a “Communist Jew.” When I defended the right of Nazis to march in Skokie, McCarthyists called me a “Nazi Jew.” When I defended unpopular criminal defendants, McCarthyists said I was a Jew who was complicit in murder. Associating an advocate of civil liberties with those whose liberties he advocates is the worst kind of McCarthyism.

  What is even more disturbing is her shanda fur di goyim (shame in front of gentiles) mentality based on her father’s belief that “you’re just a guest in America.”

  In my book Chutzpah, written over twenty-five years ago, I lament the fact that many American Jews still regard themselves “as second-class citizens—as guests in another people’s land. [They] obsess about what the ‘real’ Americans will think of [them] …” and “don’t accept that we are entitled to first-class status in this diverse and heterogeneous democracy.” Lavin seems to believe that Jews in America do not have first-class citizenship. In her America, Jews are not allowed to be supportive of a president or the party of which she (and I) disapprove. Lavin even goes so far to suggest their “herem—expulsion from the fold.”

  I will not allow Lavin to define what it means to be an American or a Jew. Although I have been a lifelong Democrat, I would never want to live in a country where Jews cannot be supportive of any political candidate or party they choose. That’s what it means to have equal citizenship under the law, something Lavin seems to deny those Jews, who make her “experience a cringing sense of shame.”

  It is important that Israel remain a bipartisan issue, and this requires that Jews remain free to support any party or candidate of their choice without fear of offending our “hosts” or of being placed in “herem” by our fellow “guests.”

  Of course, there are Neo-Nazis in America today who would explicitly deny Jews the right to equal citizenship. Ironically, Lavin seems to be adopting language similar to that of Der Stürmer when she writes that “Trump has a tendency to surround himself with badly behaved Jews,” making their Jewishness, no matter how significant or insignificant in their lives, their primary identifier.

  As a first-class American and no one’s “guest,” I will act no differently from other Americans. I will continue to advocate what I believe, regardless of what di goyim or fearful Jewish “guests” like Lavin think.

  Targeting Trump’s Lawyer Should Worry Us All22

  I believe we would have been hearing more from civil libertarians—the American Civil Liberties Union, attorney groups, and privacy advocates—if the raid had been on Hillary Clinton’s lawyer. I’ve described how many civil libertarians have remained silent about potential violations of President Trump’s rights because they strongly disapprove of him and his policies. That is a serious mistake because these violations establish precedents that lie around like loaded guns capable of being aimed at other targets.

  I have been widely attacked for defending the constitutional rights of a president I voted against. In our hyper-partisan age, everyone is expected to choose a side, either for or against Trump. But the essence of civil liberties is that they must be equally applicable to all. The silence of civil libertarians following the raid on Michael Cohen shows that we are losing that valuable neutrality.

  What else does the raid tell us? It seems likely that Special Counsel Robert Mueller is bifurcating the investigation. He will keep control over matters relating to Russia, the campaign, and any possible obstruction, but he has handed over to the US attorney for the Southern District of New York any matters relating to Trump’s personal and business affairs. Mueller will work hand in hand with the New York prosecutors, but they will be in charge of the other matters. If they manage to find prosecutable evidence against Trump’s lawyer, they may try to squeeze him into cooperating against his client.

  It is doubtful that Cohen would cooperate, even if he has anything on his client. But prosecutors often try to get lawyers to “sing” against their clients—to become “canaries”—in order to save their own feathers. Some flipped witnesses will tell prosecutors anything they want to hear in order to earn a “get out of jail free card.” They know that the “better” their story, the more leniency they will earn. So, in addition to singing, they “compose” by making up incriminating details.

  I have seen this on many occasions. Mueller has already apparently flipped several witnesses, but Cohen would be his biggest catch in the unlikely event he could be induced to turn against his client. So, stay tuned to this unfolding drama, but remember that prosecutorial tactics used today against President Trump may tomorrow be used against Democrats—and even against you.

  For ACLU, Getting Trump Trumps Civil Liberties23

  The American Civil Liberties Union, on whose national board I used to serve with pride, raises vast sums of money claiming to defend the civil liberties of all Americans. Unfortunately, however, over the last several years it has turned from being a neutral civil liberties organization to a left-wing, agenda-driven group that protects its contributors and constituents while ignoring the civil liberties of Americans with whom it disagrees.

  Sure, it occasionally defends a Nazi or a Klansman as an easy, pretend show of its willingness to protect the free speech of the most despicable racists. But it has been scandalously silent when it comes to the real current threats to civil liberties and free speech, especially on university c
ampuses where the hard-left demands suspension of free speech and due process rights for those with whom it disagrees.

  Now, since the election of President Trump, it has sunk to a new low, becoming a cheerleader for the violation of the civil liberties of those on the other side of the political spectrum. Consider the recent raid on the law office and hotel room of Donald Trump’s lawyer, Michael Cohen. In that raid, it appears as if FBI agents may well have seized material protected by the lawyer-client privilege, including communications between President Trump and his attorney. On the day of the raid, I said that if a similar raid had been conducted on Hillary Clinton, had she been elected and a special prosecutor appointed to investigate her emails, the ACLU would have been up in arms. I condemned its doubled-standard silence.

  When I said that, I couldn’t possibly imagine that the ACLU would actually go out of its way to justify and defend the raid, even before all the facts were known. But that is exactly what it has done. David Cole, who identifies himself as the ACLU legal director, said the organization relies on the good faith of the Justice Department, the FBI, and the judge who issued the warrant to assure all Americans that this raid on a lawyer’s office is a “sign that the rule of law is alive.”

  The ACLU acknowledges that material covered by the lawyer-client privilege will be shown to a “privilege team,” sometimes called a “firewall” or “taint team.” This team consists of FBI agents and government lawyers who will get to read communications between lawyers and clients that are privileged and not subject to any exceptions. They will then turn over to prosecutors only those communications that are not privileged, but these government agents will have read communications that are privileged. It is enough for the ACLU that these privileged communications will not be used in a criminal case against the client. But the ACLU does not discuss the violations of the Fourth and Sixth Amendments that occur as soon as government agents read communications that were supposed to be protected by those constitutional amendments.