By Steven J. Harper
1/22/20
Forty years ago, when I was a student at Harvard Law School, I enrolled in Alan Dershowitz’s class on professional responsibility. “Everyone is entitled to a lawyer,” he told us. “But not everyone is entitled to me.” Any lawyer in private practice can generally say no when asked to take on a case. So why did Mr. Dershowitz say yes to Donald Trump and agree to represent him in his Senate impeachment trial? Mr. Dershowitz, an ardent civil libertarian, has been a criminal defense lawyer throughout his long and distinguished career. Mr. Trump, on the other hand, is not exactly a poster child for the A.C.L.U.: Remember his advice to police officers dealing with criminal suspects? “Please don’t be too nice.” Two months before President Bill Clinton’s impeachment hearings began in 1998, Larry King asked Mr. Dershowitz whether he agrees that “some of the most grievous offenses against our constitutional form of government may not entail violations of the criminal law.” “I do,” he answered. If those offenses “subvert the very essence of democracy.” In the same interview, Mr. Dershowitz also said: “It certainly doesn’t have to be a crime if you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty. You don’t need a technical crime. We look at their acts of state. We look at how they conduct the foreign policy. We look at whether they try to subvert the Constitution.”
Mr. Dershowitz said that he was defending Mr. Trump to protect the Constitution, but serious constitutional scholars didn’t buy his argument. Another of my former professors, the constitutional law expert Laurence H. Tribe, responded with an op-ed essay in The Washington Post. “The argument that only criminal offenses are impeachable has died a thousand deaths in the writings of all the experts on the subject,” he wrote. “There is no evidence that the phrase ‘high crimes and misdemeanors’ was understood in the 1780s to mean indictable crimes.” Mr. Tribe likewise debunked Mr. Dershowitz’s argument that the president could not be impeached for “abuse of power,” noting, “No serious constitutional scholar has ever agreed with it.” Facing widespread criticism and trying to reconcile his 1998 statements with his new position, he now says that Congress doesn’t need a “technical crime” to impeach, but there must be “criminal-like” conduct, or conduct “akin to treason and bribery.” To the extent his earlier statement “suggested the opposite,” he retracts it. Such sophistry might be rhetorically pleasing to Mr. Dershowitz, but his 1998 view is still the correct one. And the articles of impeachment against the president plainly satisfy Mr. Dershowitz’s newest standard too. In his 1995 introduction to a new printing of Clarence Darrow’s autobiography, “The Story of My Life,” Mr. Dershowitz offered this advice to young lawyers: “The lawyer may not become part of the corruption in order to fight for justice.” I’m not suggesting that Mr. Dershowitz is corrupt. But he doesn’t seem to be protecting the Constitution or fighting for anything that looks like justice.
