Trumpscum Jew Nihilist Alan Dershowitz Attacks the FBI and DOJ in His Crusade Against the Rule of Law
David Shasha
Justice Department should have subpoenaed documents, not raided Trump’s home
By: Alan M. Dershowitz
The decision by the Justice Department to conduct a full-scale morning raid on former President Trump’s Mar-a-Lago home does not seem justified, based on what we know as of now. If it is true that the basis of the raid was the former president’s alleged removal of classified material from the White House, that would constitute a double standard of justice.
There were no raids, for example, on the homes of Hillary Clinton or former Clinton administration national security adviser Sandy Berger for comparable allegations of mishandling official records in the recent past. Previous violations of the Presidential Records Act typically have been punished by administrative fines, not criminal prosecution. Perhaps there are legitimate reasons for applying a different standard to Trump’s conduct, but those are not readily obvious at this stage.
The more appropriate action would have been for a grand jury to issue a subpoena for any boxes of material that were seized and for Trump’s private safe that was opened. That would have given Trump’s lawyers the opportunity to challenge the subpoena on various grounds — that some of the material was not classified; that previous classified material was declassified by Trump; that other documents may be covered by various privileges, such as executive or lawyer-client.
Instead, the FBI apparently seized everything in view and will sort the documents and other material without a court deciding which ones are appropriately subject to Justice Department seizure.
Searches and seizures should only be used when subpoenas are inappropriate because of the risk of evidence destruction. It is important to note that Trump himself was 1,000 miles away when the FBI’s search and seizure occurred. It would have been impossible, therefore, for him to destroy subpoenaed evidence, especially if the subpoena demanded immediate production. If he or anyone else destroyed evidence that was subject to a subpoena, that would be a far more serious crime than what the search warrant seems to have alleged. It is unlikely that there is a basis for believing that the search warrant was sought because of a legitimate fear that subpoenaed evidence would be destroyed.
Defenders of the raid argue that the search warrant was issued by a judge. Yet every criminal defense lawyer knows that search warrants are issued routinely and less critically than candy is distributed on Halloween; judges rarely exercise real discretion or real supervision. It may be different when a president’s home is the object of the search, but only time will tell whether that was the case here.
Neutral, objective justice must not only be done: it must be seen to be done.
For zealous Trump haters, anything done to Trump is justified. For zealous Trump lovers, nothing done to him is ever justified. For the majority of moderate, thoughtful Americans, however, the Justice Department’s raid likely seems — at least at this point in time — to be unjust or needlessly confrontational.
Thus, it is now up to the Justice Department and the FBI to justify their actions to the American public. They must explain why a different standard appears to have been applied to Democrats such as Clinton and Berger than to Republicans such as Trump and many of his associates.
Critics of this demand for a single standard of justice insultingly call it “whataboutism.” A more appropriate term would be “the shoe on the other foot test.” No government act should ever be accepted unless it would be equally applied if the shoe were on the other foot — in other words, if it were applied equally to political friends and foes. This is the essence of our constitutional requirement of the equal protection of the law.
For now, let’s not rush to judgment. Let’s give the attorney general, Merrick Garland, and the director of the FBI, Christopher Wray, the opportunity to explain their actions. If they decline to do so, on the basis of confidentiality, a special master should be appointed by the relevant court to assess the evidence seized from Trump’s home on a confidential basis. In the alternative, a true congressional committee comprised of both Democrats and Republicans should be appointed to investigate this raid.
It is true that a president or former president is not above the law — but neither should he or she be below the law. Precedents established in relation to Democrats must be equally applied to Republicans. On the face of it, this standard has not been met here.
The burden of proof is now on the Justice Department and the FBI to justify what appears to be unequal justice.
Alan Dershowitz, professor emeritus for Harvard Law School, served on the legal team representing President Trump in his first Senate impeachment trial in 2020. Dershowitz is the author of numerous books, including “The Case Against the New Censorship,” and “The Case for Color-Blind Equality in an Age of Identity Politics.” He is also the host of The Dershow on Rumble. Follow him on Twitter @AlanDersh.
From The Hill, August 9, 2022
The Indictment of Navarro is Unconstitutional
By: Alan M. Dershowitz
The indictment of Peter Navarro for contempt of Congress violates several provisions of the Constitution and should be dismissed. Navarro has a strong claim of executive privilege that should be decided by the courts before any indictment can lawfully issue.
Either the Justice Department or Congress should seek a judicial ruling that Navarro's claim of executive privilege is invalid. If the court rules that it is invalid and orders him to respond to the congressional subpoena, Navarro should have an opportunity to comply. If he fails to comply with a judicial order, he can either be indicted or held in contempt by the court. But absent a judicial order, he cannot lawfully be indicted for invoking executive privilege and refusing to reveal arguably privileged material just because a committee of Congress, controlled by Democrats, has voted that he should. It is not enough to allow him to appeal after the fact, because information, once revealed, cannot be erased. He is obliged to claim privilege now and refuse to respond. That is not a crime. It is the constitutionally correct action.
Navarro's indictment violates several key constitutional rights, including due process, fair warning and executive privilege. It also violates the separation of powers, under which the courts have the authority to resolve conflicts between the legislative and executive branches over claims of executive privilege in response to legislative subpoenas. Due process and fair warning require that these issues first be resolved by the courts before an indictment can be issued.
The Biden Justice Department knows the law and it should not be acting lawlessly to make political points. I do not support the events of January 6, 2021, as do many Americans. Congress has the right to investigate them and issue appropriate subpoenas, but they must comply with the Constitution. Legitimate ends do not justify illegitimate means, and issuing an indictment of a former executive decision without first obtaining a judicial order is an illegitimate tactic.
Navarro should move to dismiss the indictment and the court should grant his motion. In an age of partisan law enforcement, however, it is far from certain that neutral justice will be done. Some courts have been caught up in result-oriented injustice: they are understandably so opposed to what happened on January 6 and so determined to assure it will never happen again, that they are motivated to allow others or themselves to take shortcuts and deny due process and other rights to anyone allegedly complicit in these events. That is not the way the system is supposed work and it is inconsistent with constitutional justice.
The Bible admonishes judges not to "recognize faces." That command is the origin of the blindfolded statue of Lady Justice. But in our age of pervasive partisanship, too many judges peek out their blindfolds and rule differently based on the faces and political affiliations of the litigants. Every ruling and decision — whether by a judge or Justice Department official — must pass the "shoe on the other foot test." It must be the same regardless of face, name, race, ethnicity, religion, gender or political affiliation. So the question must be asked: would this Justice Department have indicted a Democratic former executive official who claimed executive privilege in response to a Congressional subpoena? We may learn the answer if the Republicans gain control of either house later this year and start issuing subpoenas for officials in the Biden White House. I hope it doesn't come to that, because two wrongs do not make a right. But it may, because a dangerous precedent established by one party in control is likely to be used by the other party when it gains control.
Indicting a former executive official who has claimed privilege without first securing a judicial ruing is an extremely dangerous precedent. It is dangerous not only to former government officials but to ordinary citizens. Consider a citizen who refuses to answer Congressional questions about conversations with her priest or medical doctor — or a lawyer who refuses to disclose confidential information he received from a client. If this indictment is allowed to stand, these citizens too could be indicted before their claims of privilege were adjudicated by a court. A dangerous precedent indeed — to the rule of law, the Constitution and the rights of all Americans.
From Gatestone Institute, June 7, 2022
Alan Dershowitz slams FBI raid on Rudy Giuliani’s apartment
By: Jackie Salo
Attorney Alan Dershowitz on Sunday explained why he agreed to help Rudy Giuliani as the former mayor is investigated over his Ukraine dealings — slamming the US as a “banana republic” after the FBI raided Giuliani’s Manhattan home.
Dershowitz, a Harvard law professor who served on President Donald Trump’s impeachment legal team, said it was “inappropriate” for the federal agents to execute a search warrant at Giuliani’s Upper East Side apartment last week.
“In banana republics, in Castro‘s Cuba, in many parts of the world when a candidate loses for president, they go after the candidate, they go after his lawyers, they go after his friends,” Dershowitz told host John Catsimatidis on the “Cats Roundtable” podcast Sunday.
“That’s happening in America now. They’re going after Rudy Giuliani,” he continued, noting that Giuliani was the US attorney for the Southern District of New York in the 1980s.
Dershowitz argued that a subpoena would have been more appropriate, given that Giuliani might keep privileged information from his own clients at his home.
“A search warrant on a lawyer or a doctor or a priest? You don’t use search warrants,” he said.
“You don’t use search warrants when people have privileged information on their cellphones and in their computers. You use a subpoena. The difference between a subpoena and a search warrant is like night and day … It’s just not constitutional,” he said.
Federal prosecutors are reportedly looking into whether Giuliani illegally lobbied for Trump on behalf of officials and oligarchs in Ukraine.
Dershowitz said he believes Giuliani has a strong case to challenge federal prosecutors if they accessed his iCloud account in early 2019 when he was the president’s lawyer — a claim that Giuliani made last week, without providing further details.
“They gave Rudy Giuliani lots of legal arguments that he can prevail on,” Dershowitz said.
“Apparently, they went after the [iCloud] and other material and information without telling him. That’s just not the way the government is supposed to treat its citizens.”
Dershowitz said Giuliani called him Saturday to ask if he’d represent him due to his constitutional expertise.
“Rudy and I have had our disagreements over the years about everything, but we completely agree about the Constitution,” Dershowitz said.
From The New York Post, May 2, 2021
Flynn Was Innocent All Along: He Was Pressured to Plead Guilty
By: Alan M. Dershowitz
More than a year ago I wrote that it was clear General Michael Flynn should never have pleaded guilty because he did not commit a crime. Even if he lied to the FBI, his lie was not "material." For a lie to be a crime under federal law, it must be material to the investigation – meaning that the lies pertain to the issues being legitimately investigated.
The role of the FBI is to investigate past crimes, not to create new ones. Because the FBI investigators already knew the answer to the question they asked him—whether he had spoken to the Russian Ambassador—their purpose was not to elicit new information relevant to their investigation, but rather to spring a perjury trap on him. When they asked Flynn the question, they had a recording of his conversation with the Russian, of which he was presumably unaware. So his answer was not material to the investigation because they already had the information about which they were inquiring.
From a legal and policy point of view, encouraging the FBI to misuse its legitimate authority to investigate past crimes, solely to create future crimes is both immoral and illegal. That is why Congress added the word material to its statute.
Because Flynn's answers were not material to what the FBI said it was investigating –- a violation of a never-used law, the Logan Act, that prohibits private citizens from negotiating with foreign governments -- they did not constitute a crime.
At the time, that argument was mocked by the usual suspects: fair-weather civil libertarians who would have supported the argument if it had been made on behalf of a liberal Democrat but who rejected it when made on behalf of a Trump Republican. They claimed there was no authority supporting this argument, despite the citation of several cases by eminent judges.
Now the Justice Department has agreed that General Flynn did not, in fact, commit any crime. Among the reasons given for belatedly dropping the case against General Flynn was that his answers did not satisfy the materiality requirement of the statute.
Let us hear now from the former civil libertarians for whom any violation of law is permissible, as long as it is directed at a Trump associate.
When I originally argued that Flynn had committed no crime, I was unaware of the exculpatory documents that the government had illegally withheld from his lawyers and him. He might well have considered them in deciding whether or not to plead guilty. This suppressed material might have bolstered his defense had he decided to go to trial.
Some may wonder why an innocent man would ever plead guilty. Anyone who knows how the system works in practice would understand why an innocent man—or a defendant in a close case—might be coerced into pleading guilty. The cruel reality is that if a defendant pleads not guilty and is found guilty, the sentence will be far greater than if he had pled guilty—perhaps even 10 times greater. Moreover, in this case, it is alleged that the government threatened, if Flynn did not plead guilty, to indict his son. These are the kinds of pressures routinely used by prosecutors. Civil libertarians have long been critical of these pressures, but fair-weather civil libertarians refuse to object when these improper tactics are used against Trump's associates. Partisan hypocrisy reigns.
The decision by the Justice Department to drop the Flynn case sends an important message to prosecutors that goes beyond the Flynn case. There must be a single standard of justice and civil liberties -- including the presumption of innocence -- that transcends partisan politics. This message has been forgotten by both parties. Flynn himself was among those who shouted, "Lock her up," regarding Hillary Clinton. Then when the Justice Department tried to lock him up, he got religion.
Cynics used to say that, "a conservative is a liberal who's been mugged." I would respond by saying that, "a civil-libertarian is a conservative who has been falsely accused." I would now add that an anti-civil libertarian is a former civil libertarian who is willing to ignore the law to get Trump and his associates.
The time has come, indeed it is long overdue, to de-politicize our criminal justice system and to forbid it from becoming weaponized by either side for partisan purposes. Dropping the case against General Flynn is an important first step, but it cannot be the last if we are to restore the criminal justice system to its rightful place as a non-partisan institution of justice.
From Gatestone Institute, May 8, 2020