Back in the 1970s when Julian Kulas, Erika Holzer, and I fought to keep "the littlest defector," teenager Walter Polovchak, from being forcibly deported to the then-Soviet Union by the KGB and ACLU, it was a lonely battle with much and many against us. Among the few who stood with us in those dark days, mostly through his newspaper column, was Professor Alan Dershowitz. Unfortunately, Alan's life-long fealty to civil liberties has been misunderstood. Lately, he has been pilloried by not just conservatives, but by many of his friends on, and of, the left. He is now in print calling appointment of the Special Counsel tantamount to putting the President of the United States before a kangaroo court. Here's Alan Dershowitz in his own words. Perhaps they will educate some members of the public about what he believes, and why.
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At a moment in history when the ACLU
is quickly becoming a partisan left wing advocacy group that cares more about
getting President Donald Trump than protecting due process, who is standing up
for civil liberties?
The short answer is no one.
Not the Democrats, who see an
opportunity to reap partisan benefit from the appointment of a special counsel
to investigate any ties between the Trump campaign/ administration and Russia.
Not Republican elected officials who view the appointment as giving them cover.
Certainly not the media who are reveling in 24/7 "bombshells."
Not even the White House, which is
too busy denying everything to focus on "legal technicalities" that
may sound like "guilty man arguments." Legal technicalities are of
course the difference between the rule of law and the iron fist of tyranny.
Civil liberties protect us all.
As H.L. Mencken used to say:
"The trouble about fighting for human freedom is that you have to spend
much of your life defending sons of bitches: for oppressive laws are always
aimed at them originally, and oppression must be stopped in the beginning if it
is to be stopped at all." History demonstrates that the first casualty of
hyper-partisan politics is often civil liberties.
Consider the appointment of the special
counsel to investigate "any links and/or coordination between the Russian
government and individuals associated with the campaign of President Donald
Trump." Even if there were such direct links that would not constitute a
crime under current federal law. Maybe it should, but prosecutors have no right
to investigate matters that should be criminal but are not.
This investigation will be conducted
in secret behind closed doors; witnesses will be denied the right to have
counsel present during grand jury questioning; they will have no right to offer
exculpatory testimony or evidence to the grand jury; inculpatory hearsay
evidence will be presented and considered by the grand jury; there will be no
presumption of innocence; no requirement of proof beyond a reasonable doubt,
only proof sufficient to establish the minimal standard of probable cause. The
prosecutor alone will tell the jury what the law is and why they should indict;
and the grand jury will do his bidding. As lawyers quip: they will indict a ham
sandwich if the prosecutor tells them to. This sounds more like Star Chamber
injustice than American justice.
And there is nothing in the
constitution that mandates such a kangaroo proceeding. All the Fifth Amendment
says is: "no person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand Jury."
The denials of due process come from prosecutorialy advocated legislative
actions. The founding fathers would be turning over in their graves if they saw
what they intended as a shield to protect defendants, turned into a rusty sword
designed to place the heavy thumb of the law on the prosecution side of the
scale.
Advocates of the current grand jury
system correctly point out that a grand jury indictment is not a conviction.
The defendant has the right to a fair jury trial, with all the safeguards
provided in the constitution. But this ignores the real impact of an indictment
on the defendant. Based on a one sided indictment alone, the "ham sandwich"
can be fired from his or her job or suspended from university. Consider what
happened to the Arthur Andersen company and its thousands of employees when it
was indicted for obstructing an official proceeding by destroying records
relating to one of its clients.
Although Andersen was ultimately vindicated,
the indictment itself forced it into bankruptcy causing a loss of thousands of
jobs and millions of dollars in shareholder values. Many individual have been
indicted on the basis of one sided grand jury prosecutions and subsequently
acquitted after a fair trial. Many of these individuals also suffered
grievously as the result of being unfairly indicted.
Consider the consequences of an
indictment by the special counsel’s grand jury in this matter. Not a conviction
– just an indictment handed down by a grand jury that heard only one side in
secret. It depends, of course on who the indictment named. In the Nixon case,
for example, the president was named as an unindicted co-conspirator by the
Watergate grand jury. This meant that he could not even defend himself at a
trial. I was on the national board of the ACLU at the time. And although I
despised Nixon and campaigned for his opponent, I wanted the ACLU to object to
the unfairness of a one sided grand jury naming him as an unindicted
co-conspirator.
So I will be standing up for civil
liberties during the duration of this investigation. As a civil libertarian I
care more about due process and the rule of law than I do about politics. But
many people conflate my advocacy for civil liberties with support for President
Trump. I have been bombarded with tweets such as: "Alan loves Donald. He’s
throwing him lifelines;" "Has he been hired by Trump? Time to come
clean;" "@AlanDersh I thought you were a smart guy. After hearing you
support Trumpie, guess not;" "Has Trump already hired @AlanDersh to
defend him? Clearly sounds that way;" and "No matter the subject, he
inserts himself in the conversation with a full-throated and nonsensical
defense of Trump."
Let me be clear: I voted for Hillary
Clinton and oppose many of President Trump’s policies. I would be taking the
same position if the shoe were on the other foot – if Hillary Clinton had been
elected and she were being subjected to an unfair process. Indeed I did do
precisely that when she was threatened with prosecution. Remember the chants of
"lock her up" during the campaign?
I will continue to monitor the
current investigations into President Trump and his associates for any
violation of civil liberties. I will call them as I see them, without regard to
which side benefits.
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And so should everyone who believes that even the President of the United States is entitled to benefit from the rule of law.
