In article <t1toqm$38sv9$5...@news.freedyn.de
> The outlaw FBI is out of control and should be disbanded. All former FBI agents should be blacklisted from law enforcement.
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
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
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
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.