FAULKNER: All right. So that’s Rudy Giuliani’s take on it but, let’s take a look and hear from Bob Goodlatte: “I think, and many others in Congress continue to think, that we need to have an independent special counsel separate and apart from the work that Mr. Mueller is doing.”
So, Alan, what I hear Congressman Goodlatte saying there is, ‘Let’s have somebody take a look at this so can you see whether or not it’s simply politics.’
DERSHOWITZ: Well, that’s what the Inspector General is doing. But, you know, I don’t think two wrongs make a right. I think it was wrong to appoint a special counsel to investigate Trump. I think it’s equally wrong to appoint a special counsel to investigate Comey.
FAULKNER: Even though we know he has leaked information. We know some of the things that James Comey has done. And by the way, politically, he is not making either side of the aisle happy.
DERSHOWITZ: There’s no question about that. But you don’t turn political opposition into criminalization. Leaking something is not a crime unless it’s leaking of grand jury material. Let’s understand that there are criminal statutes and they should be defined narrowly and we shouldn’t be weaponizing the criminal justice system against either side. I was critical of President Trump when he called for locking up Hillary Clinton and when he called for a special counsel to investigate Hillary Clinton. The president has said that he thinks special counsels are unconstitutional.
I don’t agree with that but if he thinks they are unconstitutional as to him, they are surely unconstitutional as to Comey or anybody else as well. We have to have neutral principles. The same principles.
FAULKNER: All right.
DERSHOWITZ: People confuse my advocacy. I’m not there as advocate for President Trump.
I’m an advocate for civil liberties.
FAULKNER: We had text messages flowing between at least two employees that we know about who were having an affair. Was there bias inside the FBI? I mean, the Inspector General is looking at a whole lot here.
DERSHOWITZ: And he should be. Those are appropriate functions for the inspector general. Having an honest inspector general obviates the need for a special counsel.
FAULKNER: We know that he can’t prosecute, so if there are signs of bias—
DERSHOWITZ: —he can’t prosecute but he could recommend prosecution, but he has to show that there is an actual crime committed and that crime would be prosecuted whether it was done by a Democrat or Republican or an independent. We have to have one standard of justice for all and we have to use the criminal law only as a last resort when there is clear evidence that an existing statutory crime has been committed. I don’t think that standard has been met for anybody involved so far in this whole disaster—the 2016 election.
Tweeting with POTUS
The following is my Twitter exchange with President Trump on June 7, 2018, regarding the Special Counsel:
@realDonaldTrump
Alan Dershowitz, Harvard Law Professor: “It all proves that we never needed a Special Counsel …. All of this could have been done by the Justice Dept. Don’t need a multi-million dollar group of people with a target on someone’s back. Not the way Justice should operate.” So true!
9:05 AM
***
@AlanDersh, replying to @realDonaldTrump
If @realDonaldTrump agrees with me, he should withdraw his request for a special counsel to investigate Clinton. Neutral principles. 10:47 AM
@realDonaldTrump
Alan Dershowitz, Harvard Law Professor: “It all proves that we never needed a Special Counsel …. All of this could have been done by the Justice Dept. Don’t need a multi-million dollar group of people with a target on someone’s back. Not the way Justice should operate.” So true!
***
@AlanDersh
I appreciate @realDonaldTrump agreeing with my position on special counsel. To be consistent, he should withdraw his demand for a special counsel to investigate Clinton. If he thinks special counsel is unconstitutional, it is as unconstitutional for her as for him.
10:48 AM
Conclusion
Part I
Critics of my views on impeachment and prosecution of a sitting president—in particular, President Trump—point to the fact that I stand alone in many of my conclusions. My belief that a president can be impeached and removed only if he has committed a designated high crime and misdemeanor is widely rejected by other academics.37 My conclusion that a president cannot be convicted of a crime for merely exercising his constitutional authority to fire, pardon, or end an investigation is an outlier in the academic community. My conclusion that collusion with a foreign power during an election is not currently a crime under the federal criminal code surprises many people.38
It is gratifying that some of these views, which were rejected out of hand when I first proposed them, have now become part of the debate and accepted by at least some of my erstwhile critics. Some of my own views have been modified as well by listening and learning from my reasoned critics. But many have remained the same despite compelling counterarguments. Some of these issues are uncharted, and so we all write on empty slates. My own views are very much influenced by my deep commitment to civil liberties, the rights of the accused, and my own history as a criminal defense lawyer. They are also affected by my coming of age during McCarthyism and, while in college, defending the civil liberties of communists, who I despised and who would deny civil liberties to noncommunists.
Over my half century of participating in national and international debates, I have never been one to follow the crowd, or to place partisan politics over constitutional analysis. I have tried to be consistent in my views, regardless of who was in power and who might benefit from my analysis. I try to call them as I see them—to always pass the “shoe on the other foot” test. I challenge my opponents to submit their views to that test as well.
I welcome criticism of my views on their merits and demerits, but I am appalled at the personal ad hominem attacks that have often substituted for critical analysis of my positions.39 The emails that I receive hourly from cranks and extremists don’t surprise me.40 What does surprise me is that so many serious academics and pundits prefer to attack my motives than to criticize my analysis in a reasoned way.
What also upsets me is that old friends—in New York and Martha’s Vineyard—have written to me saying that I have “crossed a line” and they can no longer speak to me. Others have threatened to walk out if I am given a platform from which to express my constitutional views. These fair-weather civil libertarians—who defend only the civil liberties of those whose ideologies they favor—are intolerant of nonpartisan defenders of the civil liberties of their ideological opponents. I joke that I have lost seven pounds on the Trump diet because my wife and I are no longer invited to dinner parties, but my being shunned for expressing politically incorrect legal opinions is a dangerous sign of our increasingly intolerant times. It may be understandable, if still wrong, when immature college students demand “safe spaces” to protect them from views that offend them, but more is expected of mature adults who should be willing to engage with those who express principled positions with which they strongly disagree. I can understand the fear that some people experience from the policies and actions of the Trump administration—some of which I also disapprove of. But the answer to fear should never be repression of unpopular ideas or denial of due process of law.
I hope this short book will provoke debate, not name-calling. The issues I raise are serious and their discussion is essential to democratic discourse. So please respond to my positions. Disagree with me; propose better arguments; defeat me, if you can, in the marketplace of ideas.
So let the debate continue. I am ready to respond to my critics in print, in the media, and in the courts of public opinion. But let’s keep the debate civil and on the merits.
________________
37 See, e.g., “Senate Trials and Factional Disputes: Impeachment as a Madisonian Device
,” 49 Duke Law Journal 1, 37 (October 1999).“[T]he impeachment standard was clearly intended to extend beyond criminal acts to include some noncriminal acts.”; Akhil Amar, “On Impeaching Presidents,” 28 Hofstra Law Review, 291, 295 (Winter 1999) (“A statute-book offense is not necessary for impeachment.”); Noah Feldman and Jacob Weisberg, “What Are Impeachable Offenses?”New York Review of Books, Sept. 28, 2017 (“Crimes and misdemeanors are thus ‘high’ when they relate to the president’s exercise of the distinctive duties of his office. They may be crimes in the sense that they are found in the statute books—but high crimes and misdemeanors may go beyond the US Code. High crimes and misdemeanors are presidential actions that contradict, undermine, and derogate democracy and the rule of law.”); Laurence Tribe and Joshua Matz, To End a Presidency, “[I]mpeachment and criminal punishment are distinct. Some lawyers, however, continue to insist that an official can be impeached only if the official has committed a crime. Although this restrictive position enjoyed a measure of support in the early 1800s, it has long since been widely and convincingly rejected.”; Cass Sunstein, Impeachment, A Citizen’s Guide (2007) (“No crime is necessary. If the president is acting in an ‘atrocious’ way that harms most of the states, he is committing a ‘misdemeanor’, even if no violation of the law is involved.”); Erwin Chemerinsky, “Is It Time to Start Talking Impeachment?” Los Angeles Daily News, May 24, 2017 (“Criminal activity always has been regarded as sufficient to meet this standard. But it also has been understood to include serious abuses of power, even if not illegal”). Even Joseph Story wrote as early as 1833 in his Commentaries on the Constitution, “[N]o one has as yet been bold enough to assert, that the power of impeachment is limited to offences positively defined in the statute book of the Union, as impeachable high crimes and misdemeanors.” Commentaries on the Constitution, Sec. 795. A minority of academics takes the view that the president can be removed for unenumerated crimes, such as for crimes against humanity, see Allan Lichtman, note supra. Richard Painter, who is hoping to win a Senate seat on his impeachment platform, suggested that Trump could be impeached for violating the First Amendment by threatening and intimidating the press, for violating the emoluments clause by receiving payments from foreign governments, and “for treason and betrayal” because of alleged collusion with the Russian government. Ambassador Norm Eisen also shared this view with Painter; see Norman L. Eisen and Richard W. Painter, “Did Donald, Jr. Break the Law?” New York Times, July 11, 2017. In connection with the investigation of Trump’s fixer Michael Cohen, scholars and pundits alike have come up with new crimes which could lead to Trump’s imminent downfall, such as bank and wire fraud, as well as campaign finance violations. I am sure by the time this book goes to press, these pundits will have come up with new crimes du jour on which Trump could be indicted. As I argue in essays in this book, if the shoe was on the other foot and Hillary Clinton were investigated, the ACLU and other liberal organizations would bemoan how vague these federal crimes are, and how much leverage they give prosecutors to bring politically motivated criminal charges.
38 For an overview of criticism, see Evan Mandery, “What Happened to Alan Dershowitz?” Politico, May 11, 2018.
39 For a representative sample, see Elie Mystal, “Guys, I’m Worried About Alan Dershowitz,” Above the Law, December 7, 2017.
40 The following are direct quotes from messages I recently received:
“But I wanted you to know personally from me, an American citizen who has no power other than to observe, think, and vote, that I hope with all my heart that you get cancer and die a painful, disgusting death, you fuck, you traitorous fuck.
O.J. was guilty. Trump is guilty. Fuck you, you fucking fucker. Die! Die!
If, above all else, it’s all about Jerusalem as the capital, and bombing Iran, and loving Israel to you, just move there! Good riddance. You are a cancer on America, and I hope you get cancer of your own.”—Christopher K.
***
“You’re a piece of shit for making those comments about obama … despite what zionists such as yourself want the rest of us to believe, the world doesn’t revolve around jews … you’re a self-serving disgrace.”—Andrew C.
***
“Alan ‘Goebbels’ Dershowitz.
You’ll be remembered as a liar and a phony on the day you die, and then you’ll be forgotten by history. Your obit has already been written, like Alfred Nobel’s had been.”—Christopher K.
***
“I would ask how you look in the mirror but the answer is that if you call the orangutan as your friend it is that you are a slimy motherfucker! Your a Jew but if there is a hell you are destined to burn in it!”—Howard W.
Part II:
The Political Case Against Impeaching Trump Doesn’t Pass the “Shoe on the Other Foot” Test
The shoe on the other foot test is a colloquial formulation of a moral principle that traces its roots back to the Bible; the Greek, Roman, and Chinese philosophers; Kant and Mill; and modern political philosophers such as John Rawls. It is simple, elegant, and uncontroversial—at least in theory. Yet it is almost never followed in practice.
The test, which can be applied to every moral argument, is whether the person offering it as a neutral moral principle would make, and/or has made, the same argument when that argument would not serve—or would undercut—his or her interests. These interests might be political or ideological or they might be based on identity—racial, ethnic, religious, or gender. They might also involve sexual preference, national origin, tribal affiliation, family situation, or economic status.
To pass the test, the person offering what purports to be a neutrally principled argument that furthers their interests must satisfy the burden of proving their consistency of principle by demonstrating that they would offer the same argument if it undercut their interests. If the person offering the argument fails the test, the argument itself may not be weakened: the power of a logical argument is not weakened by the hypocrisy of the person offering it. But it weakens—perhaps destroys—the credibility of the person offering the argument.
This is important because those considering the force of an argument often attribute considerable weight to the credibility of the person making it.
Let me offer two examples of arguments that failed the shoe on the other foot test: one from each side of the political divide. The most recent occurred when hundreds of law professors—many quite distinguished and highly respected—sent a petition to the senate and the media urging the rejection of Brett Kavanaugh to be a justice of the Supreme Court. Their argument seemed persuasive on its face: Kavanaugh had shown partisanship and a lack of judicial temperament during his second confirmation hearing when he angrily defended himself against charges of sexual misconduct and accused Democrats of seeking revenge against him for his role in the impeachment of President Clinton. The argument itself was well constructed and strong. What else would you expect from experienced law professors? But what made it even more persuasive was that it was endorsed by hundreds of law professors. If exactly the same words had been endorsed by the first thousand people in the Boston phone book (to borrow an example from William Buckley), it would not have carried the same weight.
This observation turns the classic philosophical fallacy ad hominem on its head: if a good argument should not be rejected because the person making it is bad, it follows that no argument—good or bad—should be judged by the goodness, brilliance, or credibility of the person offering it. But the reality is that arguments are, in fact, judged by those offering it. Hence the shoe on the other foot test.
So, back to the Kavanaugh petition.
What if it could be proved that most, many, or all the signatories would have refused to offer their compelling argument if the shoe were on the other foot: if the candidate were a gay, liberal woman appointed by a democratic president whose confirmation would assure a progressive majority for years to come. What if this woman had been accused of sexual abuse when she was a tee
nager and had angrily denied it using language similar to that used by Kavanaugh?
What weight would you give the law professors’ Kavanaugh petition if you believed that many of the same professors would have offered precisely the opposite argument—and offered it persuasively as law professors have the ability to do—in the gay woman case? What if they merely would have remained silent and not signed any petition?
Either position would constitute a blatant failure of the shoe test. And those who failed the test would be exposed as hypocrites. I am absolutely certain—because I know many of the signatories—that most would never have signed the identical petition if its target were the gay, liberal woman. I, therefore, accuse them of failing the shoe on the other foot test.
The second example is the majority decision by five Republican Justices in Bush v. Gore, back in 2000. I first employed the shoe test in critiquing that decision. I wrote a book entitled Supreme Injustice in which I wrote the following:
This book is about the culpability of those justices who hijacked Election 2000 by distorting the law, violating their own expressed principles, and using their robes to bring about a partisan result. I accuse them of failing what I call the shoe on the other foot test: I believe that they would not have stopped a hand recount if George W. Bush had been seeking it. This is an extremely serious charge, because deciding a case on the basis of the identity of the litigants is a fundamental violation of the judicial oath, to “administer justice without respect to persons….” In this book, I marshal the evidence in support of this charge.
The Case Against the Democratic House Impeaching Trump Page 17
