The "Odd" Argument of Alan Dershowitz

Did we really just hear Alan Dershowitz argue, during the question and answer period of the impeachment proceedings, that Donald Trump’s demand for a foreign investigation to aid his re-election might not evidence a corrupt intent because Mr. Trump may sincerely believe that his re-election is in the national interest? Whatever credibility Mr. Dershowitz might have retained, after his recent misdescription of the Constitution’s impeachment requirements, he has now forfeited any claim to be a serious scholar and defender of the Constitution.

The Dershowitz Strategy

Now I understand Alan Dershowitz and we owe him an apology. He figured out that the only way to end the Trump Era and restore sanity to our government was to pose as an ally, become the prized guru of the Right and, as a principal defender of Mr. Trump, make absurdist arguments to excuse the president's corruption and abuse of power. Then, when Republicans inevitably acquit Mr. Trump, they will be exposed as spineless, mindless sycophants who put retention of power above protection of country, by signing on to Mr. Dershowitz' patently preposterous pronouncements. 

In this way, Mr. Dershowitz will have demonstrated to the American people and the rest of the world the true nature of today's Republican party and the danger it poses to constitutional standards and basic morality. Thanks to this ingenious stratagem, Mr. Trump and his senatorial loyalists will be swept from power in the next election and Mr. Dershowitz will have saved our democracy from the brink of destruction.

Dershowitz' Defense of Trump

Alan Dershowitz is right that in this country every person , however vile, corrupt or criminal, is entitled to a defense. It is also true that lawyers have a professional and ethical obligation to represent an accused however unpopular or guilty. Nevertheless, an attorney may not knowingly elicit false testimony and has a responsibility to inform the court when a client has committed perjury. An attorney may not conspire with nor assist a client to commit a crime.

The duty to defend a criminally accused client does not extend to enabling that client to continue to hold the office of president of the United States. Mr. Dershowitz, who has inexplicably altered his past assessment of what constitutes an impeachable offense, has lost sight of the gulf between his professed defense of the Constitution and his constitutionally unsound excuses for Donald Trump's abuse of power. By arguing against the impeachment of this president, Mr. Dershowitz is not fulfilling some higher duty. Instead, he is aiding a fraud on the Senate and the American people and enabling Mr. Trump's continuing destruction of the rule of law. Indeed, he is putting at risk the civil liberties he claims to hold dear.

Dershowitz Joins Impeachment Defense Team

President Trump has chosen Prof. Alan Dershowitz to argue against impeachment in the Senate (front page and news article, page A17, Jan.18 ). Mr. Dershowitz accepted the assignment but wants it known that he remains a liberal who will be defending the Constitution, not Mr. Trump. He has reminded us that his concern for civil liberties has led, in the past,  to his representation of other unpopular clients including neo-Nazis, a rather apt comparison. It was his professed concern for civil liberties which also drew him to regularly join Sean Hannity in badmouthing Robert Mueller and his investigation, which documented Mr. Trump's multiple acts of obstruction of justice.

Now, purportedly prompted by his fear that Democrats are attempting to weaponize the impeachment power, to rid the  nation of a would be tyrant, Mr. Dershowitz  is expected to argue that the charge of abuse of power is too open-ended and constitutionally impermissible.  Although Mr. Dershowitz has conceded that an article of impeachment need not specify a particular crime, his planned contention ignores that Mr. Trump's proven conduct falls squarely within the crimes of extortion and coercion and those crimes are implicit in and delimit the parameters of the charge of abuse of power. Prof. Dershowitz's misguided, and legally mistaken defense of Donald Trump's "constitutional rights" makes him an enabler, wittingly or otherwise, of Mr. Trump's ongoing destruction of the liberties Mr. Dershowitz purports to defend.

Illegal Phones Expose Prisoners' Squalor

Buried on page 16 of the NYTimes  (1/17), is a story about the horrific conditions in Mississippi prisons as reported and documented by inmates on contraband cellphones. Just as outrageous is the response of that state's supreme court, which the article reports upheld a 12 year sentence imposed on Willie Nash, who was in jail on a misdemeanor charge and innocently asked a jailer if he could recharge his phone. The cowards on that court "noted that [the sentence] was 'obviously harsh' and 'seems to demonstrate a failure of our criminal justice system' " but inexplicably did nothing to alleviate the inhumane sentence nor to address the abhorrent injustice except to pay lip service. Another depressing example of justices who fail to do justice.

The Senate Must Hear Witnesses

Prof. Krotoszynski Jr.'s argument (1//16/20, A23), that the Senate should reject President Trump's claim of executive privilege to prevent the testimony of his senior aides, is erudite, well-reasoned and substantially correct. However, I disagree that the Senate is free to fashion its own take on bedrock legal principles to guide an impeachment trial.

Had the House of Representatives obtained a final court ruling, that the president's assertion of privilege was bogus, I believe the Senate should be bound to apply that finding. In the absence of such a ruling, the Senate should be guided by the precedent established by the courts in other cases defining the limits of executive privilege. To disregard those precedents, and make its own law in this impeachment, the Senate would be announcing that the law is different for this president than it is for others, a dangerous acknowledgement that Mr. Trump is above the law.

The "Imminent" Threat of Soleimani

Put aside that President Trump's latest justification, for the killing of Quds Force leader Soleimani, differs from past explanations, has been contradicted by other officials, is unsupported by any evidence, was not included in the briefing given Congress and defies the plain meaning of imminent. If an attack on four American embassies was imminent presumably  it was already planned and merely awaiting a go-ahead, a signal just as easily given by Soleimani's successor who would have increased incentive to retaliate. Taking out Soleimani would, therefor, prevent nothing.

Further, by publicly outlining those plans, Mr. Trump has increased the prospect that terrorist cells will feel called upon to carryout what they likely will regard as Soleimani's dying wish. Thus, Mr. Trump's inconsistent and evolving string of excuses has increased, not diminished the risk of harm to Americans.

Abolishment of Cash Bail

Law enforcement officials sound alarms on eve of cash bail abolishment (1/1/20, A-20).

While history demonstrates that most defendants released without bail will return to court and will not engage in violence while at liberty, it was a mistake to not legislatively empower judges to consider the risk of harm to the public posed by some released arrestees. While that determination may be subjective, it can be appropriately informed and delimited by objective tests including the nature of the crime, the strength of the evidence, the existence of documented threats and the defendant's mental state and criminal history. 

While the new law, which takes effect today, made some reasonable accommodations to public safety, by excluding serious crimes and those involving violence, that is merely a temporary solution. A permanent fix should provide for a rational way to assess and prevent the risk of  release to public safety and insure speedier trials so that accused persons do not languish in jail for lack of financial means.