Here’s the kernel of Alan Dershowitz’s Wall Street Journal op-ed:
Mr. Smith has made a stronger case against Mr. Trump than many observers, including me, expected. The question remains: Is it strong enough to justify an indictment of the leading candidate to challenge the president in next year’s election? Even with the recorded statements, this case isn’t nearly as strong as the one that led to President Richard Nixon’s resignation in 1974. Nixon was almost certainly guilty of destroying evidence, bribing witnesses and other acts of obstruction. Many of the charges in this case are matters of degree. Nor have prosecutors any evidence that Mr. Trump’s actions damaged national security more than those of Mr. Biden, Mr. Pence and Mrs. Clinton did.
When an incumbent administration prosecutes the leading candidate against the president, it should have a case that is so compelling that it attracts the kind of bipartisan support that forced Nixon to resign. No such support is currently apparent, since many Republicans continue to be troubled by the targeting of Mr. Trump. Mr. Smith will have to convince not only a Miami jury but the American public, on both sides of the partisan divide.
Mr. Dershowitz is correct that President Trump in his truculent attitude towards his accusers has created some of his own problems:
Mr. Smith had a lot of help from Mr. Trump. Had the former president cooperated with investigators and immediately returned all the classified material in his possession, as Messrs. Biden and Pence did, charges would have been unlikely.
Unmentioned is that it is also possible that the multiple baseless or, at the very least, weak accusations made against Mr. Trump by his political opponents since before the election has rendered the bipartisan consensus referred to above by Mr. Dershowitz on Watergate less likely.
Well duh, Sherlock. Trump is charged with unlawful retention of documents relating to the national defense and of conspiracy to obstruct the return of the documents. If he returned the documents, he wouldn’t be charged with not, oh, gee whiz.
Bipartisan support only came late in the process. We have only seen a small fraction of what the prosecutors have in terms of evidence, but what is in the public domain is damning enough.
Zach conveniently leaves out Hillary…. But I digress.
Washington leaks classified materials like a sieve. The faux outrage and legal contortionist commentary speaks more to the selective morals of critics than anything else.
I listened, last night, to a one hour interview with Dershowitz. He is far less restrained there, and more complete than his editorial and Dave’s snippets. If you can find it, it’s highly recommended.
Don’t overthink it people. The intellectual noodling ( especially the mind reading on intent, or legally, “willful†) snd BS commentary on letter of the law reflects badly on, exposes actually, you.
It’s a political case on its face.
“We have only seen a small fraction of what the prosecutors have in terms of evidence”
That would be a surprise. Usually prosecutors look best on the day of indictment when they present everything they got in the best possible light, before the defense gets to poke holes in either the evidence or the law.
But this is an unusual case so the prosecutor could be holding back material evidence from the public.
My democrat friends are even referring to the those prosecuting Trump as “The Cabal,†as the politicization of these investigations seems more and more what is at the crux of their indictment frenzy.
We will learn more today!
A commenter from another paper mentioned the fact that Trump landed in Florida on his personal jet, with his name printed in large letters along it’s side, yet collecting millions from his subjects for his defense. Clever!
Keep people bringing up Hillary, Biden, Pence. Many people have no wonted out that Biden and Pence cooperated and didnt lie. That leaves Hillary. David French covers that well so I have the key part of his argument below. So really Dershowitz argument comes down to he shouldn’t be prosecuted unless there is bipartisan agreement, at a time when no one agrees on anything.
“Unmentioned is that it is also possible that the multiple baseless or, at the very least, weak accusations made against Mr. Trump by his political opponents since before the election has rendered the bipartisan consensus referred to above by Mr. Dershowitz on Watergate less likely.”
That weighs against they very, very many true accusations of bad behaviors.
“But in the case of the new indictment by the special counsel Jack Smith, “no worse†comes with an additional twist. Trump’s case is not the first high-profile instance of a senior public official mishandling classified information. Hillary Clinton comes to mind. So in addition to evaluating the relevant law, a key question is whether the Justice Department is applying the same standard to Trump as it did to Clinton, the standard articulated in a public statement by the F.B.I. director at the time, James Comey.
Despite making clear that Clinton and her team “were extremely careless in their handling of very sensitive, highly classified information,†Comey declined to recommend prosecution because he said he couldn’t find evidence that the Justice Department had prosecuted any case under similar facts: “All the cases prosecuted involved some combination of clearly intentional and willful mishandling of classified information or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct or indications of disloyalty to the United States or efforts to obstruct justice.â€
That’s the Comey test: no prosecution absent evidence of one or more of the factors above. I disagreed with the decision at the time and still disagree. I’m a former Judge Advocate General’s Corps officer, an Army lawyer who helped investigate classified information breaches when I served in Iraq, and I feel confident that I would have faced military charges under similar facts.
But once the Comey test was articulated, it should be evenly applied. And thus the critical question for the political legitimacy — and not just legal sufficiency — of the indictment is whether there is evidence of intentionality or obstruction in the Trump case that was absent in Clinton’s. (This is the same question that should be asked of the mishandling of classified documents by Joe Biden and Mike Pence.) After reviewing the indictment, one verdict is indeed quite clear: The Justice Department had little choice but to charge Trump. The evidence of intentional misconduct and comprehensive obstruction of justice is just too strong. Any other decision would place presidents outside the rule of federal law and declare to the American public that its presidents enjoy something akin to a royal privilege.”
https://www.nytimes.com/2023/06/09/opinion/trump-indictment-evidence.html
Steve
The Supreme Court, in Gorin v. United States, found “elements of scienter and bad faith” are required under the Espionage Act. Military law has other statutes that may apply; but Clinton was a civilian leader, so the punishment, absent intent, is administrative.
So, steve, your view is that the claims of Russian collusion by Democrats against Trump have had no effect on the attitude of Republicans? That seems to be what you’re saying.
I doing think there is anything that Democrats can say, or could have said, that would sway Republican feelings on Trump. As I have said many times, it is a cult of personality and essentially a cult. It is impervious to facts, data, evidence. Trump, the Leader, chose Barr a solidly very conservative choice who protected him from what the Mueller report really said, if you actually read it. Then he points out what actually happened with the Biden/Pence documents and he is a communist Trump hater. So weigh that against the bad behaviors. They ignore those or find a way to convince them they prove Trump is even more glorious. The “weak” complaints are trivial.
Nixon was another era. The parties had not totally tribalized yet. This was well before Gingrich and there were still some southern Democrats and northern liberals in the GOP. Dershowitz is basically making the argument that we not prosecute any POTUS for any crime.
Steve
I dunno, everyone seems to have lost their mind.
I don’t see how anyone can logically conclude that the investigation of Clinton’s mishandling of classified info was entirely legitimate and should have resulted in her prosecution, while Trump’s mishandling of classified information is no big deal and the whole thing is just a political hatchet job.
And also the reverse. I still regularly encounter people who think the investigation of Clinton was entirely bogus, entirely political, and entirely sexist, while every investigation of Trump is entirely legitimate and – if anything – too softball.
I can’t see a way that either of these views can be based on principles other than pure partisanship.
And what usually goes unsaid is that if a regular civil servant, like I used to be, would have done what Clinton or Trump did, prosecution would be certain, and jail time would be almost certain. It’s funny how right-wingers were pointing out this fact when Clinton was in the crosshairs, and now it’s left-wingers pointing it out when Trump is in the crosshairs.
Also, multiple things can be true.
For instance, the “Russiagate” investigation turned out to be largely bullshit compared to expectations set by Trump’s opponents, and the NY case against him is at best very weak and very likely politically motivated.
At the same time, this latest indictment can be (and is, IMO) entirely legitimate given the facts we know.
Trump can have enemies who are very clear in their desire to “get him” for something – anything, while, at the same time, Trump can be credibly accused of actual crimes.
But it seems that more many partisans, this minimal amount of nuance is beyond them.
I think they both should have resulted in prosecutions.
Prosecuting both would not have been consistent with past events which would have made it a political prosecution as French notes. I am sure that French is correct that your average grunt would face some punishment for accidentally having confidential papers at home, but then in order to get them they are pretty much going to have to deliberately break rules. These upper level executive branch people get stuff sent to them or need to look at stuff where they live. Also, I would bet big bucks that the punishment French, Andy or any military would face for deliberately taking home confidential papers, lying about it and directing other people to help hide them would be much worse than if we managed to accidentally take something.
Steve
I was talking about the partisan narratives, not the facts.
WRT to the facts, the decision not to prosecute Clinton is consistent with how other cases regarding VIP’s were handled. And Pence (his case is now closed) and Biden, who were similarly negligent to Clinton, and will get the same deference she did.
Trump is different because the circumstances and facts are different. He committed what are clearly crimes when it was no longer President – like showing classified info to people who did not have a clearance or need to know. By knowingly retaining classified info he knew was in his possession, by refusing to cooperate when the material was discovered, and lying – or having his lawyer lie – about it.
Those are all pretty serious and will be hard to bat away with VIP privilege.