Over the past 9 months, as the media has launched an all out offensive on the Trump administration for crimes that have yet to be even identified with any level of specificity much less proven, former Harvard law professor Alan Dershowitz has tried to be a voice of reason by appearing on numerous talk shows to discuss facts and legal precedents as opposed to innuendo and baseless accusations.
Just last week Dershowitz blasted the New York Times for suggesting that Trump Jr.’s meeting with the now infamous Russian lawyer was an “act of treason” saying that while such actions may be “reprehensible” they’re not technically illegal. Meanwhile, Dershowitz has argued all along that “not all political actions that smell or look like corruption can be prosecuted criminally without Congress specifically making such conduct criminal by precisely worded legislation.” Per an opinion piece from Dershowitz published by The Hill:
My critics have argued for an extraordinarily broad definition of corruption capable of being expanded to fit nearly everything Trump has done — from firing FBI Director James Comey, to asking him to consider dropping the investigation of General Michael Flynn, to his son’s meeting with Russian surrogates.
This is the way the New York Times put it in its story about the court’s narrowing the meaning of corruption in the context of federal criminal law: “There was a time when political corruption might have been described — as a former Supreme Court justice once said of pornography — as something you knew when you saw it.” In other words, it was in the eye of the beholder rather than in a precise statutory definition.
That dangerous time — dangerous because it substituted the rule of individual prosecutors for the rule of law — came to a gradual end over the past several years as the Supreme Court repeatedly cabined the definition of corruption under federal statutes. It ruled that not all political actions that smell or look like corruption can be prosecuted criminally without Congress specifically making such conduct criminal by precisely worded legislation.
This salutary approach to defining overbroad words like corruption was applauded by many civil libertarians and liberals, and especially by criminal defense attorneys who had seen up close how expandable terms like corruption could be, and were being abused by ambitious prosecutors determined to add notches to their belts by convicting dishonest politicians.
But, Dershowitz goes on to point out that, in the Trump era, “civil libertarians, liberals and even defense attorneys” that once applauded the narrowing of broad terms like “corruption,” are now effectively longing for a one-time exception in order to “get Trump.”
Now many of these same civil libertarians, liberals and even defense attorneys have forgotten how dangerous those bad old days were, and are demanding that President Trump and his family members should be prosecuted for corruption under the most expansive definition of corruption, despite recent court rulings narrowing that open-ended term.
“Just this one time, please. Just let us get Trump.” That is what the fair-weather liberals, civil libertarians, and criminal defense lawyers seem to be saying. “Then, we will return to our principles.”
But that’s not the way the law works. There are no exceptions — no “just this one time.” The law operates on precedent. Today’s exception may become tomorrow’s rule. And even if it doesn’t, it creates a precedent for more exceptions, which may be applied to our side of the political aisle, as Republicans tried to do with Hillary Clinton.
Of course, further defining specific actions that constitute “corruption” could very well ensnare many of the elected officials in Congress who would bare responsibility for writing such legislation…
For prosecutors who believe that the recent court decisions “may be the beginning of a parade of horribles,” as one former prosecutor put it, there is a democratic remedy: enact legislation that specifically covers the conduct you deem reprehensible and apply it to future cases. That’s the way the rule of law is supposed to operate in a democratic society.
So let’s have one law for all politicians and citizens. Let’s not stretch existing law to fit Donald Trump, Hillary Clinton, or anyone else. The courts have rightly interpreted corruption narrowly. If prosecutors — including the special counsel investigating the Trump administration — want to broaden that term, let them take their case to Congress, not to a grand jury.
…somehow we suspect their interests lie elsewhere.
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