Thursday, Oct 18, 2018
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Keith Burris

Dershowitz and due process for those we don’t like


    Alan Dershowitz, the famed Harvard law professor and civil libertarian, has become a controversial figure for defending the civil rights of President Trump on television.


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    Keith Burris

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Keith Burris

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Alan Dershowitz is one of the nation’s best and most respected legal minds. He spent almost all of his adult career at Harvard Law School where, some 50 years ago, he became a full professor at the age of 28. He retired in 2013.

Mr. Dershowitz has also long been a controversialist, ready, willing and able to take despised clients, tough positions and all the heat that came with them. He defended accused murderers and at least one domestic terrorist (Patti Hearst).

But there are not a lot of people calling for fair play for Donald Trump in Cambridge, Massachusetts. So Mr. Dershowitz’s emergence as a major and eloquent defender of the President’s civil rights has surprised a few and exposed Mr. Dershowitz to a whole new level of heat. Indeed, his ex-student Jeffrey Toobin, the New Yorker legal writer and TV commentator, accused him, to his face on CNN, of “carrying water for Donald Trump.”

“What’s happened to you?” Mr. Toobin asked.

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But Mr. Dershowitz says he’s the same guy he’s been for 50 years — a secular Jew, a liberal Democrat (who voted for Hillary Clinton), and an ardent defender of civil liberties.

Mr. Dershowitz has long been a critic of special prosecutors and special counsels because they ride roughshod over rights to due process and privacy. The tendency, he says, is for zealous prosecutors to identify a target and then find the crime to fit the target.

A license to keep digging until something that can be prosecuted is found is essentially totalitarian and un-American, but we keep creating these Javerts.

Well it’s one thing to take that position as an academic matter. The professor’s legal expertise and fame came at the intersection of constitutional and criminal law. But it is positively brave to apply this skepticism about prosecutorial power to Donald Trump.

Robert Mueller’s investigation has been called a fishing expedition. Mr. Dershowitz goes further, with his penchant for the memorable phase. He calls it a “legal colonoscopy.”

Mr. Dershowitz says Mr. Mueller never should have been appointed. No special counsel should have been.

And in recent days, he has criticized the raid of the office and home of Mr. Trump’s personal attorney, Michael Cohen, and the seizure of his computer and phone and, therefore, personal communications between Mr. Trump and Mr. Cohen. That, said Mr. Dershowitz, is an abridgment of lawyer-client privilege that cannot possibly be justified by what is essentially an election law violation.

How many Americans would think it right if the feds — including an FBI and CIA more politicized and weaponized than at any time since Hoover and Nixon — seized such records on any one of us? These could include highly personal financial, health, and family matters. What would justify this level of violation of confidentiality?

“A highly publicized raid on the president’s lawyer will surely shake the confidence of many clients in promises of confidentiality by their lawyers,” says Mr. Dershowitz, who, for the record, advises the president — publicly, not privately — to do as follows on the Mueller inquiry: “No pardons, no firings, no tweets, and no testifying.”

One might think, given Mr. Dershowitz’s long, consistent record, that his concerns would make many think twice. Instead, he is dismissed as a Trump lackey.

DERSHOWITZ: Targeting Trump’s lawyer should worry us all

Actually, those concerns have little to do with Mr. Trump and everything to do with justice and law. Due process of law is the single greatest idea in Western civilization. It means nothing if it only applies to the people a majority thinks are innocent, or likable.

Intellectually honest people will admit: The FBI would not have raided Donald Trump’s lawyer’s home if Mr. Trump had not been elected president. Mr. Cohen would have been on no one’s radar. They will admit that a legal colonoscopy would never happen to a liberal Democratic president, no matter what ethical, financial, and legal corners he, or she, cut. But many will also tell you: Trump is “so bad” that, this time, the excesses and irregularities are OK.

There is a famous passage from Robert Bolt’s great play, A Man For All Seasons, about Sir Thomas More, that applies. More engages in a dramatic dialogue with a young idealist (who later in the play sullies his soul) named Will Roper:

Roper: So, now you give the Devil the benefit of law!

More: Yes! What would you do? Cut a great road through the law to get after the Devil?

Roper: Yes, I’d cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then?

Yes, I’d give the Devil benefit of law, for my own safety’s sake!


Keith C. Burris is editor and vice president of The Blade, and editorial director for Block Newspapers. Contact him at: or 419-724-6266.

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