Alan Dershowitz Reborn

Alan Dershowitz was long regarded as a champion of civil liberties (he served on the board of the ACLU), as an outspoken advocate for victims of an oppressive criminal justice system and as a distinguished professor of law at Harvard University. While, at times, he espoused controversial, even outrageous, legal positions and his confrontational persona offended some, his sincerity and commitment to a just and evenhanded legal system was seldom questioned.

In recent days, however, a new model of Prof. Dershowitz has gradually evolved. This altered version began with small steps that seemed in keeping with his concern for rigorous implementation of constitutional protections even as his pronouncements, seemingly by coincidence, aided a beleaguered President Trump. Thus, Dershowitz authored an op-ed piece for this newspaper which cautioned against criminalizing political conduct and argued that the president could not be guilty of obstruction when he directed FBI Director Comey to discontinue the Flynn investigation. The learned professor's argument seems to have overlooked the recognized legal principle that actions motivated by an improper purpose, even though within the president's executive powers, may still constitute obstruction of justice.

In the service of promoting his new book,"Trumped Up", Dershowitz began to appear on the Fox cable network, which apparently welcomed the opportunity to enlist an icon of the Left in support of pro-Trump arguments. The more often he appears, particularly on the program hosted by Sean Hannity, the stronger and more strident the professor's pro Trump rhetoric becomes (though he appears to adjust his take and tone when on non-conservative channels). Unsurprisingly, President Trump, who reportedly gets most of his information by watching Fox News, has taken note of this unexpected source of legal support and Dershowitz was invited to dine at the White House.

Now Dershowitz appears regularly on the Hannity show and makes full-throated attacks upon President Trump's nemesis Special Counsel Robert Mueller and Deputy Attorney-General Rosenstein. While disclaiming any role as Trump's attorney he, nevertheless, offers advice apparently intended to guide the President's defense. Thus, he recently suggested that Trump should decline to be interviewed by Mueller and should invoke not the Fifth Amendment's protection against self-incrimination (which would be politically disastrous) but rather the Sixth Amendment's right to counsel. The professor's perplexing argument is that Trump could proclaim his desire to testify but assert that he is foreclosed from doing so by his attorneys' direction to abstain. Being bound by his attorneys' instructions Trump is somehow deprived of his right to counsel. This argument is not only legally baseless and illogical, it contravenes the well-established principle (which surely is known to the former Harvard professor) that the client has the ultimate and absolute right to decide whether to testify on his own behalf.

It is difficult to fathom why Professor Dershowitz has executed such a radical about-face at this stage of his long legal career. One can only speculate that he may be driven by a need for renewed public attention, an appetite whetted by the new-found adulation heaped by Fox News, a desire to promote the sale of his book or an identification with the Middle East policy of the Trump administration. In any event, for better or for worse, the new Alan Dershowitz has regained, for the moment, his place on the national stage.