Imagine that the search was of your lawyer’s office, or your doctor’s office, or your spouse’s computer, or the rectory of your priest. Imagine that government agents got to read the most intimate, privileged communications between you, your lawyer, your doctor, your spouse, or your priest. Would it be enough that the government (and the ACLU) told you that the information wouldn’t be used in a criminal case against you? Would you believe that your civil liberties had been violated as soon as government agents read this material? Would you trust government agents not to leak embarrassing information about your conversations, especially if you were a controversial public figure?
The ACLU does not address any of these questions because the person whose lawyer’s office was searched was Donald Trump. Virtually every contributor to the ACLU voted against Trump, as I did. It is understandable in our hyper-partisan age that many Democrats, liberals, and leftists are so outraged at President Trump that they are willing to ignore violations of his civil liberties, even if these violations establish a precedent for future use against all Americans. It is inexcusable that the ACLU should ignore these potentially blatant violations of the right of privacy under the Fourth Amendment, the right to counsel and confidentiality under the Sixth Amendment. But for the ACLU, getting Trump trumps civil liberties.
It is precisely because the ACLU has abandoned its role as a neutral defender of civil liberties that I have had to speak up so loudly and repeatedly in opposition to the criminalization of political differences and to the violation of President Trump’s civil liberties. I wish I didn’t have to, but the hyper-partisan nature of American life—reflected by the ACLU’s decision to justify potential intrusions into Trump’s Fourth and Sixth Amendment rights—makes it necessary for someone to take over the traditional role of the ACLU. I hope others, both Democrats and Republicans, liberals and conservatives, will join me in protecting the civil liberties of all Americans.
The Final Nail in the ACLU’s Coffin
The director of the American Civil Liberties Union (ACLU) has now acknowledged what should have been obvious to everybody over the past several years: that the ACLU is no longer a neutral defender of everyone’s civil liberties, and it has morphed into a hyper-partisan, hard-left political advocacy group. The final nail in its coffin was the announcement that, for the first time in its history, the ACLU would become involved in partisan electoral politics, supporting candidates, referenda, and other agenda-driven political goals.
The headline in the June 8, 2018 edition of the New Yorker tells it all: “The ACLU is getting involved in elections—and reinventing itself for the Trump era.” The article continues:
In this midterm year, however, as progressive groups have mushroomed and grown more active, and as liberal billionaires such as Howard Schultz and Tom Steyer have begun to imagine themselves as political heroes and eye presidential runs, the ACLU, itself newly flush, has begun to move in step with the times. For the first time in its history, the ACLU is taking an active role in elections. The group has plans to spend more than twenty-five million dollars on races and ballot initiatives by Election Day in November.
Since its establishment nearly a hundred years ago, the ACLU has been, in the words of the New Yorker, “Fastidiously nonpartisan, so prudish about any alliance with any political power that its leadership, in the 1980s and ‘90s, declined even to give awards to likeminded legislators for fear that it might give the wrong impression.” I know because I served on its national board in the early days of my own career. In those days, the board consisted of individuals who were deeply committed to core civil liberties, especially freedom of speech, opposition to prosecutorial overreach, and political equality. Its board members included Republicans and Democrats, conservatives and liberals, right-wingers and left-wingers—all of whom supported neutral civil liberties. The key test in those days was what I have come to call “the shoe on the other foot” test: would you vote the same way if the shoe were on the other foot—that is, if the party labels were switched?
Today, the ACLU wears only one shoe and it is on its left foot. Its color is blue. And the only dispute is whether it supports the progressive wing of the Democratic Party or its more centrist wing. There is little doubt that most board members today support the progressive wing, though some think that even that wing is not sufficiently left. There is no longer any room in the ACLU for true conservatives who are deeply committed to neutral civil liberties. The litmus test is support for hard-left policies.
To be sure, the ACLU will still occasionally take a high-profile case involving a Nazi or Klan member who has been denied freedom of speech, though there are now some on the board who would oppose supporting such right-wing extremists. But the core mission of the ACLU—and its financial priority—is now to promote its left-wing agenda in litigation, in public commentary, and in elections.
If you want to know the reason for this shift, just follow the money. ACLU contributors, including some of its most generous ones, are strong anti-Trump zealots who believe that the end (getting rid of Trump) justifies any means (including denying Trump and his associates core civil liberties and due process).
Anthony Romero, the current radical leftist who directs the ACLU, refers to those of us who favor the ACLU’s traditional mission as “the old guard.” The leading critic of the ACLU’s newfound partisan mission is Romero’s predecessor, Ira Glasser, who was the executive director of the ACLU from 1978 until 2001. Glasser believes that this transformation in the way the ACLU has operated since 1920 “has the capacity to destroy the organization as it has always existed.” Glasser points out that some of the greatest violations of civil liberties throughout history have come from “progressive politicians, such as President Franklin D. Roosevelt, who interned 110,000 Japanese-American citizens.” He worries, and I worry, that when the ACLU supports candidates’ parties and partisan agendas, it will become less willing to criticize those whom it has supported when they violate civil liberties.
The presidency of Donald Trump has introduced a new dynamic. Trump himself has denied fundamental civil liberties by his immigration policies, his attitude, his actions regarding the press, and his calls for criminal investigations of his political enemies. The ACLU will criticize those actions, as it should. But the Trump presidency has also pushed the ACLU further to the left and into partisan politics. President Trump is so despised by contributors to the ACLU that they have increased their contributions—but also demanded that the ACLU be on the forefront of ending the Trump presidency, either through impeachment, criminal prosecution, or electoral defeat.
The move of the ACLU to the hard-left reflects an even more dangerous and more general trend in the United States: the right is moving further right, the left is moving further left, and the center is shrinking. The center left is losing its influence in organizations like the ACLU, and the center right is losing its influence in conservative organizations. America has always thrived at the center and has always suffered when extremes gain power. The ACLU’s move from the neutral protector of civil liberties to a partisan advocate of hard-left politics is both a symptom and consequence of this change. If America is to remain strong, its major institutions must move closer to the center and reject the extremes of both sides. If the ACLU does not return to its core values, a new organization must be created to champion those values.
“Firewalls” and “Taint Teams” Do Not Protect Fourth and Sixth Amendment Rights—We Need a New Law to Protect Lawyer-Client Communications24, 25
Many TV pundits are telling viewers not to worry about the government’s intrusion into possible lawyer/client privileged communications between President Trump and his lawyer, since prosecutors will not get to see or use any privileged material. This is because prosecutors and FBI agents create firewalls and taint teams to preclude privileged information from being used against the client in a criminal case. But that analysis completely misses the point and ignores the distinction between the Fifth Amendment o
n the one hand and the Fourth and Sixth Amendments on the other.
The Fifth Amendment is an exclusionary rule. By its terms, it prevents material obtained in violation of the privilege of self-incrimination from being used to incriminate a defendant—that is, to convict him of a crime. But the Fourth and Sixth Amendments provide far broader protections: they prohibit government officials from intruding on the privacy of lawyer/client confidential rights of citizens. In other words, if the government improperly seizes private or privileged material, the violation has already occurred, even if the government never uses the material from the person from whom it was seized.
Not surprisingly, therefore, firewalls and taint teams were developed in the context of the Fifth Amendment, not the Fourth or Sixth Amendments. Remember who composes the firewall and taint teams: other FBI agents, prosecutors, and government officials who have no right under the Fourth and Sixth Amendments even to see private or confidential materials, regardless of whether they are ever used against a defendant. The very fact that this material is seen or read by a government official constitutes a core violation. It would be the same if the government surreptitiously recorded a confession of a penitent to a priest, or a description of symptoms by a patient to a doctor, or a discussion of their sex life between a husband and wife. The government simply has no right to this material, whether it ever uses it against the penitent or the patient or the spouse in a criminal case.
So, let’s not dismiss the potential violation of the rights of Michael Cohen and his client if it were to turn out that included among the materials seized by the government in the raid were private or confidential information or documents.
The recourses for intrusions on the Fourth and Sixth Amendments are multifold: the victim of the intrusion can sue for damages; he or she can exclude it from use by the government in criminal or civil cases; or the victim can demand the material back. But none of these remedies undo the harm to privacy and confidentiality done to the citizen by the government’s intrusion into his private and confidential affairs.
An equally important harm is to important relationships that are protected by the law: between lawyer and client, priest and penitent, doctor and patient, husband and wife, etc. If an ordinary citizen, seeing that even the president’s confidential communications with his lawyer can be seized and perused, he or she will be far less willing to engage in such communications. As a society, we value such communications; that is why our laws protect them, and that is why it should be extremely difficult for the government to intrude upon them except as a last recourse in extremely important cases.
From what we know, this case does not meet those stringent standards. Much of the material sought by the warrant could probably be obtained through other sources, such as bank, tax, and other records that are subject to subpoena. Moreover, the alleged crimes at issue—highly technical violations of banking and election laws—would not seem to warrant the extreme measure of a highly publicized search and seizure of records that may well include some that are subject to the lawyer/client privilege.
Someday soon, the government is going to have to justify its decision to conduct this raid. I challenge any reader who is not concerned about this raid to honestly answer the following question: If the raid had been conducted on Hillary Clinton’s lawyer’s office and home, would you be as unconcerned? The truth, now!
This episode dramatically demonstrates the need for new legislation to ensure that no FBI agents or US attorneys ever get to read privileged, personal communications. There is a better and safer way to deal with this issue than the current approach of using prosecutors and FBI agents to do the sifting.
A law should be enacted under which anytime the government is seeking to search an office or home that may contain confidential and privileged information, the search team must be accompanied by a judicial officer—a judge, a magistrate, or someone appointed to fulfill that function.
That judicial officer should be the only one ever to read material that is eventually deemed to be confidential. A judge can be trusted not to leak far better than FBI agents or prosecutors. If a judge were to leak, it would be easy to identify the source of the unlawful disclosure, since the single judge would be the only one to have access to the confidential material.
This procedure might be somewhat more cumbersome and expensive than the current “taint team” approach, but it would provide much better safeguards to the fundamental rights that we as Americans possess. The taint team could be retained in the context for which it was originally developed, which is to prevent potential violations of the Fifth Amendment by the use of immunized self-incriminating testimony. Taint teams should never be used in the context of the Fourth or Sixth Amendments because the privacy and confidentiality at stake there is very different than that at stake under the Fifth Amendment.
The Fifth Amendment merely prohibits the use of illegally obtained self-incriminatory information at the defendant’s criminal trial. The Fourth Amendment prohibits unlawful intrusions into the privacy of any American, and the Sixth Amendment implicitly prohibits violations of the lawyer-client privilege. Such violations occur the moment private or confidential information is viewed by government agents, regardless whether it is ultimately used in a criminal trial.
When I proposed this new law on CNN, legal analyst Jeffrey Toobin responded that lawyers, doctors, penitents, and spouses are not above the law, and if there is probable cause to believe they may have committed a crime, it should be permissible to search their records without the direct supervision of a judge. But with due respect to my former student, that answer misses the point.
The focus of my proposed law is not on the privacy rights of guilty lawyers, doctors, priests, and spouses. Its focus is on the privacy and confidentiality rights of their innocent clients, patients, penitents, and spouses. The proposed law is intended to protect the rights of these innocent bystanders. The legitimate confidentiality right of innocent people must be given priority over any inconvenience that might be caused by requiring a judge to be the one to filter out protected communications.
My proposed law would not prevent the government from seizing incriminating evidence from guilty lawyers, doctors, priests, or spouses, so long as the evidence was not covered by a legitimate privilege. It would put prosecutors in the same position they are in today: They would not be able to use information that was ultimately deemed to be privileged. But it would protect the innocent clients, patients, penitents, and spouses from having their private and confidential information reviewed by FBI agents and prosecutors who might well leak the information or misuse it in other ways.
Congress should seriously consider enacting such a law—not to help Donald Trump, but to protect the constitutional rights of all Americans whose private and confidential communications are now reviewed by taint teams comprising FBI agents and prosecutors. All Americans should support this reasonable protection. (And there is precedent—Judge Kimba Wood appointed a former judge to serve as a “Taint” monitor.)
The Sword of Damocles26
From an April 2018 appearance on This Week with George Stephanopoulos, including Mimi Rocah of Pace Law School and ABC Chief Legal Analyst Dan Abrams.
GEORGE STEPHANOPOULOS: Welcome to all of you. Professor Dershowitz, let me begin with you. The president is clearly agitated by all of this pressure on Michael Cohen. He also called the raid on Cohen an attack on our country. After those raids, how serious is the threat to Cohen and Trump?
DERSHOWITZ: Oh, it’s a very serious threat. This is an epic battle for the soul and cooperation of Michael Cohen. And prosecutors have enormous weapons at their disposal. They can threaten essentially with life imprisonment. They can threaten his parents. They can threaten his spouse. They have these enormous abilities to really put pressure and coerce a witness.
On the other hand, the president has a unique weapon that no other criminal defendant or suspect ever has: he has the pardon power. And go back to Christmas 1992 whe
n President Bush exercised that pardon power and pardoned Caspar Weinberger, precluding him from pointing the finger at him.
GEORGE STEPHANOPOULOS: Put a lot on the table right there. We’ll get to each of it in terms—I mean, I’ve got to go to you first because I saw you sort of squinting as Professor Dershowitz was talking about all those threats the prosecutors can make.
MIMI ROCAH, CRIMINAL JUSTICE FELLOW, PACE LAW SCHOOL: Yes. I have a response to that. You know, look, that’s not what prosecutors do in my experience, having been one for sixteen-and-a-half years and having, you know, worked with many of them across different districts, including New York.
They do not threaten people’s parents and children. I mean, I just—I don’t know, it sounds good but I don’t know where that accusation is coming from.
DERSHOWITZ: Do you want some examples?
ROCAH: But, if I could, what they do with cooperators is, especially a cooperator like Michael Cohen, they don’t trust him to begin with. They don’t just take what he says and write it down. They listen to what he says. They’re skeptical. They test it against other evidence. They try to corroborate it. They don’t just take at face value what a cooperator says.
STEPHANOPOULOS: So you don’t get a deal until you’re certain, or certain as you can be, that the potential cooperator is telling the truth.
The Case Against the Democratic House Impeaching Trump Page 13
