Alan Dershowitz Hasn’t Changed

While longtime supporters have turned on the legendary attorney over his support of Donald Trump, he's been astonishingly consistent.

Evan Mandery has a fascinating cover feature in POLITICO Magazine asking, “What Happened to Alan Dershowitz?” It turns out, not a thing.

The setup:

If you wanted to feel the full force of the intellectual whirlpool that is American politics in 2018, the place to go on February 25 was the Village Underground, a nightclub beneath East 3rd Street, where Alan Dershowitz, the longtime Harvard Law professor and civil liberties lion, was debating the future of American democracy on the side of President Donald Trump.

Opposing him were a National Review writer and a former FBI agent, arguing that the special investigation into ties between Russia and Trump’s presidential campaign is well within the bounds of American law. Dershowitz, along with a conservative columnist for the Washington Examiner, was making the case that the Mueller investigation is dangerous to our entire system. In the room, which is normally a comedy club, it was impossible to shake the feeling that something was off. Two years ago, it would’ve seemed far more natural for the quartet to swap partners and switch sides.

[…]

The woman behind us in line took her free book, turned to her husband and asked, “What happened to Alan Dershowitz?”

In certain circles—the legal academy, defense attorneys, Martha’s Vineyard—it is the question. Dershowitz, an iconic civil libertarian and criminal defense lawyer, who circulates between the liberal redoubts of Miami, New York and the Vineyard, has emerged in the past year as the most distinguished legal defender of Trump. He’s met Trump at Mar-a-Lago, and he dined with him at the White House the day after the FBI raid on Michael Cohen’s office. He’s a regular presence on TV, especially Fox News, where he’s a reliable voice on the president’s side against the investigation. In April, following the Cohen raid, Dershowitz appeared on “Hannity” nine times—including three days in a row. His message is clear: Mueller’s investigation is a witch hunt, and although he doesn’t think Trump should fire Mueller, the president would be within his rights to do it.

“People everywhere ask what happened to him,” said Nancy Gertner, a former federal judge and lecturer at Harvard Law School who has known Dershowitz for years. “I get that from everyone who knows I know him.”

[…]

Over this storied career, Dershowitz’s public persona has remained more or less unchanged: loud, provocative, brilliant and principled, if also relentlessly self-promoting. And, until recently, his positions have been tolerated, if not always embraced, by the legal academy and universally acknowledged for their moral seriousness.

About a year ago, after Mueller’s appointment on May 17, that started to change. Around then, Dershowitz—never one to overlook a celebrity being railroaded—started getting more TV airtime for his argument that a sitting president could not be guilty of obstruction of justice. The liberal intelligentsia recoiled. Dershowitz speaks openly of having been shunned by friends and condemned by relatives since then—even, he told me, at his family’s recent Passover Seder, where his grandson and nephew urged him to dial down his public defense of the president. He’s been harshly critiqued by former Harvard colleagues and within the small, tightly entwined community of civil libertarians. In late March, when legal analyst Jeffrey Toobin confronted him directly on Anderson Cooper 360—“I don’t know what’s going on with you … this is not who you used to be”—it felt like a moment of collective catharsis for liberals who see Trump as a threat to democracy.

The payoff:

But is Dershowitz really a turncoat? I spent two months interviewing leading civil libertarians and Dershowitz’s former colleagues, reading through his life’s work, and interviewing him twice. In one view, Dershowitz, at the end of his career, has finally crossed the line, defending a demagogue who rejects and threatens the very principles of liberty and fairness to which Dershowitz has dedicated his life. In another view, the people who’ve lost their way are the liberals and civil libertarians, blinded by their rage for Trump, who have dropped their principles in a moment of political threat and are taking out their anger on a man who has been their staunchest ally.

Maybe the question isn’t what happened to Alan Dershowitz.

Maybe it’s what happened to everyone else.

[…]

Dershowitz’s conception of pure civil libertarianism resembles the “original position”—the thought experiment developed by the philosopher John Rawls, with whom Dershowitz was in a reading group at Harvard. Rawls, widely regarded as the most important political philosopher of the 20th century, suggested people should think about ethics as if they were operating behind a “veil of ignorance”—as if they were building a society without knowing what their race, gender and social standing would be, and were trying to develop rules that would work to everyone’s benefit. It’s an attempt to think about justice purely from the standpoint of fairness. In the contemporary context, the challenge might be to consider what you would think about, say, the Electoral College without knowing whether it would work to the benefit of your party or the opposition.

Rawls is ordinarily classified as a liberal philosopher, since “justice as fairness” requires equal rights, equal opportunity and, generally speaking, fair treatment of the powerless. But some of the neutral principles that would likely emerge from that approach—say, “every person should be entitled to the presumption of innocence and a vigorous legal defense”—benefit not only the powerless but also the rich and powerful, like, say, Donald Trump.

“I call it the shoe-on-the-other-foot test,” Dershowitz told me. Several days after our first talk, the FBI raided Michael Cohen’s offices, and he appeared on Fox News to say much the same thing. “You know, if this were the shoe on the other foot,” Dershowitz told Hannity, “if this were Hillary Clinton being investigated and they went into her lawyer’s office—the ACLU would be on every television station in America jumping up and down.”

Dershowitz’s supporters see his position on Trump as consistent with the rest of his career. “If you look objectively at what he’s doing, he’s applying neutral civil liberties principles to Trump, as he would to anyone else,” said Harvey Silverglate, a civil rights lawyer in Boston and a longtime friend of Dershowitz’s. Harvard professor Jack Goldsmith told me, similarly, “Alan has obviously throughout his entire career been a principled defender of civil liberties, especially for those under criminal investigation. His commentary in the last year is entirely consistent with that lifelong commitment.”

In this telling, Dershowitz is a still point in a turning world, a zealot for neutral civil liberties so dedicated to his principles that he’s willing to defend even people whose politics could undermine or destroy them. To Dershowitz’s detractors, this is precisely the problem. They say Dershowitz has failed to recognize that we’re in a new moment, when for the first time in our lives a president is flirting with authoritarianism in a way that, if unchecked, could bring down the very system that Dershowitz has spent his life defending.

There’s a whole lot more to the piece and I commend it in its entirety. I find its argument quite compelling.

Having watched Dershowitz for decades, going back to the big hair days, he’s always struck me as the same guy: a brilliant zealot. As my political ideology has evolved, in some ways closer to his, he’s remained a fixed point. Dershowitz is in some ways an older version of Glenn Greenwald, who delighted the left and infuriated the right when he was going after the excesses of the Bush administration and whose opponents flipped sides as he continued applying those same standards to the Obama administration.

While I think some of Dershowitz’ positions on the Trump investigation are extreme—he is, after all, a zealot—I’m sympathetic to his basic line of argument. I’m not, at the end of the day, a Rawlsian but I frequently apply the “shoe-on-the-other-foot test” test that Derschowitz applies. Fundamentally, I share his generic concern over the potential to abuse the state’s virtually unlimited investistagotory power, especially when applied to a person the investigator is adamant is guilty of something. And that’s even more the case when the investigation is playing out as a public spectacle, which not only doubles down on the pressure on the investigators to find something damning but also leaves a lot of wreckage along the way as lesser targets in the investigation are publicly squeezed to get to the bigger fish.

Given the general sleaziness of the people with whom Trump has surrounded himself, I’m not shedding a lot of tears over their fate. Given the shocking violations of legal norms by the President and the disgusting toadyism of the Congressional wing of the Republican Party, who refuse to stand up for principle, there was no obvious better alternative to appointing a special counsel. And Bob Mueller, who is by all credible accounts one of the most honorable men in public life, is as trustworthy as anyone with that power. But Dershowitz’ broad concerns about the inherent potential for bad precedents are worth airing.

FILED UNDER: Donald Trump, Law and the Courts, ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Hal_10000 says:

    I’ll agree that Dershowitz — although I disagree with him in this particular case — is operating from principle. He’s been talking about this stuff for years, no matter who is in power. It’s a big difference from the Johnny-come-lately Republicans who didn’t discover what the FBI is capable of until its power was turned on one of their rich (and white) political allies. To hear the likes of Gingrich talk about “gestapo tactics” while hundreds of people are day are subjected to literal SWAT raids is the height of absurdity.




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  2. Scott F. says:

    I can appreciate that Dershowitz has been consistent, but…

    Given the shocking violations of legal norms by the President and the disgusting toadyism of the Congressional wing of the Republican Party…

    …holding to neutral civil liberties principles is not the appropriate response. As the Ship of State is listing seriously toward authoritarianism, it’s going to take a strong countervailing force in the opposite direction to restore any kind of balance.




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  3. SenyorDave says:

    I do think he changed. Does anyone remember this from a few years back:

    http://blogs.reuters.com/great-debate/2011/09/07/the-case-for-torture-warrants/

    This was Dershowitz arguing for state-sponsored torture! Doesn’t seem like he was too concerned with civil liberties in these cases. He also has become a compete absolutist regarding Israel. I’m not sure that there is anything could do that he would not defend.

    Personally, I think Dershowitz cares about civil liberties on a selective basis. Perhaps he was always that way, but he is pretty much open that civil liberties matter sometimes.




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  4. Kit says:

    To my mind, these are Dershowitz’s salient points:

    – justice is fairness and everyone deserves the full protection of the law;
    – the President cannot obstruct justice (he’s effectively above the law);
    – Mueller is conducting a witch hunt (despite the steady stream of convictions his investigation has managed).

    Just how does anyone square that circle?




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  5. reid says:

    “Extremist” seems like the right word for him. He speaks in absolute terms, when as in most cases in life, shades of grey are important (as Kit alludes to):

    – An investigation into the president can be a witch hunt, but it can also be justified. You can imagine examples of both, and the situations are not the same.

    – The justice department should be watched carefully, but it also does an important job and should be supported when acting appropriately.

    – The president has a great deal of power in the executive branch, but it’s not unlimited and he isn’t (or shouldn’t be) above the law.

    If Dershowitz wasn’t such an absolutist about these things, especially now in the case of this horrible administration which he is supporting with his actions, he wouldn’t be getting so much grief.




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  6. James Joyner says:

    @SenyorDave: I think Dershowitz’ argument there is more nuanced: It’s conceivable that there may be instances when torture is justified as an extreme measure. But Presidents shouldn’t be allowed to make those calls on their own. Therefore, we need to have a process where judges weigh the arguments and concur in issuing a warrant.

    @Kit: I see those as legalistic points, all individually defensible and, indeed, probably right. But, you’re right that they don’t add up to a coherent notion of justice.




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  7. Kylopod says:

    I still have Chutzpah on my bookshelf. There were always things I disagreed with him about, and I always found him rather insufferable on a personal level. But I liked a lot of his writings on topics ranging from church-state separation to the Jewish generation gap. His views on civil liberties helped shape my own.

    He didn’t suddenly go off the deep end. It’s a process he’s been going through since at least the Dubya years, when this so-called “civil libertarian” began to defend torture (something that goes surprisingly unmentioned in the Politico article). During Obama’s presidency he was increasingly acting like an apologist for right-wingers. The real turning point for me was when he started heaping effusive praise on Glenn Beck over his support for Israel, completely ignoring Beck’s use of anti-Semitic dogwhistles in a lot of his commentary. This was the opposite of the Dershowitz I remember, who used to warn Jews against trusting right-wing Christians who offered uncritical support for the Jewish state.

    The Glenn Greenwald comparison has occurred to me. It’s kind of strange, since he and Greenwald are sworn enemies (who among other things hold very different views about Israel). But they actually have a lot in common: They’re both lawyers who preach civil libertarianism. They’re both associated with the left but throughout their careers have been somewhat politically amorphous. They’re both capable of brilliance and have written things I like. And they’ve both ended up as essentially apologists for the Trump Administration, going on Fox News to assure viewers that the Mueller investigation is all fake and should be shut down.

    It’s a familiar pattern on Fox–the “Democrat” or “liberal” who bravely speaks the truth that just happens to confirm the right-wing narrative, so they can say, “See, even the liberal Dershowitz says there’s no there there about Russia.” The people in this category never fail to mention their supposed Democratic credentials, such as claiming not to have voted for Trump or claiming to have opposed this or that Trump policy.

    I mean, why not? Let’s face it, we do the same thing with the right’s apostates (Jen Rubin, David Frum, George Will, etc.). Dersh may have his personal reasons for his political evolution (he fits into a pattern of Jewish liberals who have shifted rightward in their politics since 9/11 in large part due to their feelings about Israel), but at this point he’s just sold out.




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  8. Franklin says:

    @Kit: From my general knowledge of Dershowitz, I do understand where he’s coming from and there’s definitely *some* truth in his concern about overzealous investigations/prosecutions.

    The shocking thing to me is that middle item in your list. Does Dershowitz really desire that? Or think that’s what the Constitution says? I’d be curious what other legal experts have to say about whatever line of reasoning made him arrive at that conclusion. Because it’s disgusting.




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  9. Warren Weber says:

    @Kit: There are a few things you’re not taking into account.

    1) Mueller’s investigation hasn’t suffered the pushback, stonewalling, and wholesale destruction of evidence that prior investigations (like the ones into Hillary and Obama-related matters) have faced.

    2) We have discovered a heck of a lot more connections between the Hillary campaign and Russia than we have the Trump campaign and Russia.

    3) All of Mueller’s successes have related to matters that fall into one or more of the following categories: A) happened long prior to the campaign; B) had no connection to the campaign; or C) were “process crimes” that were in response to the investigation itself.

    Mueller’s successes so far fall quite nicely into the Lavrentiy Beria model of “show me the man, and I’ll find you the crime.”




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  10. gVOR08 says:

    Dershowitz told Hannity, “if this were Hillary Clinton being investigated and they went into her lawyer’s office—the ACLU would be on every television station in America jumping up and down.”

    Given probable cause against Hillary Clinton remotely comparable to the depth and breadth against Trump and his minions, the ACLU would likely not “be on every television station in America jumping up and down.”

    People often try to make a case with an example they themselves just made up. But it does seem more common on the conservative side.




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  11. Kit says:

    @Warren Weber:

    You wish to take issue my assertion that an investigation which has borne so much fruit cannot be considered a witch hunt.

    Mueller’s investigation hasn’t suffered the pushback, stonewalling, and wholesale destruction of evidence that prior investigations

    This is neither here nor there, or have I missed your point? Care to state the general principle we should be applying in this and, indeed, every investigation?

    We have discovered a heck of a lot more connections between the Hillary campaign and Russia than we have the Trump campaign and Russia.

    Same thing. This really is beside the point.

    All of Mueller’s successes have related to matters that fall into one or more of the following categories

    So you admit that there have been successes. If it continues such as you imagine, then some more criminals will be put away and Trump will be able to crow that extensive investigation has turned up zilch on him. It seems that people in Trump’s corner should be cheering on the investigation, right?




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  12. gVOR08 says:

    @SenyorDave:

    He also has become a compete absolutist regarding Israel. I’m not sure that there is anything could do that he would not defend.

    Trump seems willing to follow the Saudi and Israeli line on the Middle East, currently by reneging on the Iran nuke deal. Netanyahu is happy with Trump. That seems more salient to Dershowitz’s position than any absolutist libertarianism.




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  13. An Interested Party says:

    It’s conceivable that there may be instances when torture is justified as an extreme measure.

    And what would those instances be…




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  14. Franklin says:

    @Warren Weber:

    1) Mueller’s investigation hasn’t suffered the pushback

    You lost me pretty quickly here. Nothing you said can have any credibility after starting with that statement.

    You guys want a witch hunt? How about 25 years of hunting Hillary with nothing to show for it.




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  15. TM01 says:

    @SenyorDave:
    He sounds kind of like most Democrats there.

    Or like they used to sound I suppose. Brennan supported torture. Holder never brought charges against anyone.

    Water boarding was deemed legal. It was used sparringly and was effective those few times it was used. And it may be uncomfortable, to put it very mildly, but I don’t think it truly falls under torture. We do it to some special forces as part of their training. We’re not pulling off people’s fingernails.

    But most of the posts here are indeed that Dershowitz changed just because he’s not viciously attacking Trump the way you want him to.




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  16. TM01 says:

    @Scott F.:
    authoritarianism!?!

    My gods!

    Perhaps we should all be advocating a smaller, less powerful government in order to prevent that!

    Or is that just more BS from you?




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  17. SenyorDave says:

    @TM01: There has been a narrative that the US executed Japanese soldiers for waterboarding after WW2. Here is a link to a site that examined that narrative that rates it as true.

    http://www.politifact.com/virginia/statements/2015/jan/12/bobby-scott/bobby-scott-after-wwii-us-executed-japanese-war-cr/

    I wish that the Obama administration had gone after the torturers but then again I was not POTUS and I did not have to make that decision, as well as deal with the consequences. As far as it being effective, it probably “worked” in some cases, undoubtedly did not in other cases, and ultimately, detainees were waterboarded who were actually not involved in terrorism of any type. In fact, we know of detainees who died as a result of torture. It is also safe to say that whatever we know is not nearly as bad as what we do not know.

    Its pretty scary how cavalier some people are about torture, and it is also interesting how strongly opposed many career military men and women are to its use.

    Even if you believe torture should be used in very limited circumstances, one would think that any thinking person would be appalled at Trump’s attitude toward the use of torture. he seems to go out of his way to sound like a child when he talks about it, completely disregarding the repercussions of its use.




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  18. Warren Weber says:

    @Kit: I repeat, cite a single conviction by Mueller directly related to Russian interference in the 2016 presidential election. As I said, he’s only found success in matters only tangentially related to his charge, at best.

    @Franklin: Yes, there has been pushback — which I did not deny, despite your selective editing.

    When Mueller faces the destruction of over 30,000 subpoenaed documents, has top officials lie freely in their interviews, and allows subjects of the investigation to sit in on official interviews with other subjects by claiming to be their attorney, then it will be comparable. The resistance and pushback to Mueller has been negligible in comparison to that leveled against the investigations into Hillary.




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  19. Franklin says:

    @Warren Weber: OK, you seem to be polite which is a good sign for productive discussion.

    Regarding your response to Kit: True, no convictions, but you will recall indictments against 3 companies and 13 Russians. No they’ll never be convicted since Russia would of course never extradite them, but this was certainly part of Mueller’s task. And as you know, the scope assigned to him allowed for tangential investigations (regardless of our opinions on whether it should have been). In any case, the investigation isn’t done. Don Jr. said “I love it” which should be a conviction right there.

    Regarding the amount of pushback, it sounds like you’re mostly narrowing it to Hillary’s e-mail thing, because the things you list don’t seem to apply to any other investigation that I’m aware of. Mind you, I still don’t agree. Hillary, Bill, Obama, none of them fired the FBI director or anybody else when they were being investigated. And there wasn’t half of Congress calling for a halt to the investigations. You yourself note the amount of ‘process’ crimes in regards to the investigations. So if we’re comparing pushback alone, I strongly disagree with your assessment.

    Stonewalling? Hard for me to assess – telling me somebody released a million pages or a hundred pages doesn’t tell me how important those pages are. Destruction of evidence? Again this seems to apply to Hillary, and the FBI didn’t seem too concerned that it was intentionally done to conceal evidence. I actually don’t know if I buy that, but it’s what the investigators said. Hillary was extremely sloppy if nothing else.




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  20. An Interested Party says:

    I’ll bet most torture apologists want to make America great again…meanwhile, anyone talking negatively about the Mueller investigation is being incredibly premature…it can’t be pointed out enough that we have no idea what Mueller has and you’re deluding yourself if you think there isn’t much more to come…the Lavrentiy Beria comparison was lovely though…




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  21. JKB says:

    And Bob Mueller, who is by all credible accounts one of the most honorable men in public life, is as trustworthy as anyone with that power.

    Yeah, only if you ignore Mueller’s part is the FBI’s covering up for murders run out of Boston when Mueller was at, and in charge of, the Boston US Attorney office.

    Albano was appalled that, later that same year, Mueller was appointed FBI director, because it was Mueller, first as an assistant US attorney then as the acting US attorney in Boston, who wrote letters to the parole and pardons board throughout the 1980s opposing clemency for the four men framed by FBI lies.

    ….

    Four years ago, when questioned about the FBI’s corruption in Boston, Mueller told the Globe, “I think the public should recognize that what happened, happened years ago.’’




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  22. Kit says:

    @Warren Weber:

    I repeat, cite a single conviction by Mueller directly related to Russian interference in the 2016 presidential election

    You posted this after:

    All of Mueller’s successes have related to matters that fall into one or more of the following categories

    So, you are not “repeating” any request. And you certainly did not reply to any of my points. As you will not argue in good faith, I’m stopping here. As Franklin has said, you are polite, which is better than most people posting here on the Right tend to be, but there really needs to be some back and forth if you wish to convince others.




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  23. de stijl says:

    @Kylopod:

    he fits into a pattern of Jewish liberals who have shifted rightward in their politics since 9/11 in large part due to their feelings about Israel

    Dershowitz had a major life-altering change after 9/11. He moved from a nationally known civil libertarian to a nationally known torture apologist to outright advocate.

    but at this point he’s just sold out.

    I really don’t think he has sold out. He means every word he says (and whatever money comes with it is gravy; he just wants the soapbox). After 9/11, he didn’t so much move from left to right, or D to R, in the American context, but rather he moved from HaAvoda (Labor) to Likud in his political outlook. And that move to a Likud understanding of the world colors everything he has said since shortly after 9/11.




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  24. Warren Weber says:

    @Franklin: I seem to recall that one of those indicted Russian companies actually sent a representative in to court — and Mueller had to scramble to beg for an extension. That says, to me, that at least that particular indictment wasn’t “ready for prime time,” but possibly a face-saving move so he could have something to show.

    The actions you cite by Trump are all justifiable — the people he fired all had well-documented grounds for dismissal. Also, JKB brings up Mueller’s involvement in the Boston FBI mess, but also could have mentioned Mueller’s running of the anthrax investigation — he put such a witch-hunt on an innocent man that the government had to give the poor guy an eight-figure settlement.

    Also, Mueller’s charge was in itself legally flawed. Special prosecutors are supposed to be charged with investigating an actual, specific crime, with the law cited; “Russian collusion” doesn’t qualify. Special prosecutors are not supposed to have personal or professional ties with any parties to the investigation; Mueller and Comey have very strong ties both personally and professionally, and Comey certainly is a key figure.

    Personally, I wouldn’t mind if the investigation were to continue a bit longer. So far, the main consequence of it has been unintended — and wonderful. Look at all the people within the FBI and the Justice Department who have been exposed as having committed all kinds of wrongs in their opposition to Trump. If it wasn’t for the investigation, we probably wouldn’t know about the misdeeds of Strzok and Page, Bruce and Nellie Ohr, Andrew and Jill McCabe, Sally Yates, and numerous others.

    It’s remarkable how these plans to ruin Trump end up taking out so many of his enemies. Remember how Trump was one of the bigger targets of the “Me Too” movement? So many Democrats have been brought low by that, but Trump’s still going strong.




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  25. Warren Weber says:

    @Kit: OK, we can get pedantic if you like. Here is the challenge:

    1) List the indictments and convictions Mueller has achieved so far.

    2) Discuss how they directly relate to “Russian interference in the 2016 presidential election.”

    So far, they have all been incidental or procedural.




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  26. HarvardLaw92 says:

    @Warren Weber:

    I repeat, cite a single conviction by Mueller directly related to Russian interference in the 2016 presidential election. As I said, he’s only found success in matters only tangentially related to his charge, at best.

    You’re moving the goalposts, by reflecting back to the (flawed) assertion that Mueller’s mandate is limited to solely investigating election interference. This simply is not the case. Since you seem to be trying at least to be a somewhat honest broker, allow me to explain why. I won’t even charge you the $1,500 an hour I normally bill …

    The memo appointing Bob as a Special Counsel (effectively a US Attorney in everything but title) contains three empowering provisions:

    1) any links and/or coordination bet ween the Russian government and individuals associated with the campaign of President Donald Trump; and

    2) any matters that arose or may arise directly from the investigation; and

    3) any other matters within the scope of 28 C.F.R. § 600.4(a)

    I can possibly see why a layman might get confused about this verbiage, but you should read each of those clauses as a separate, distinct investigatory pathway. It works like this:

    1) Investigate the heck out of this, and find out if there were any illegalities committed with respect to interfering with the election (including campaign finance violations).

    2) While you’re doing #1, if you discover any other potential illegalities, regardless of whether they’re directly related to #1 or not, you’re empowered to investigate those as well

    3) If anybody you’re investigating knowingly tries to interfere with your investigation – for example, by committing perjury, destroying evidence, attempting to obstruct the investigation, intimidating witnesses – you’re empowered to prosecute them for those actions regardless of whether the primary matters being investigated under #1 OR #2 result in a determination of illegality or not …

    Short version: Under #1, Mueller gets to investigate anybody and everybody with regard to whether they conspired to illegally influence an election (this includes violations of campaign finance laws). Under #2, anything else Mueller might discover in the course of investigating #1 – say, for example, money laundering – results in a separate, independent and co-equal investigatory mandate even if whatever they were being investigated for under #1 produces nothing. Anybody attempting to knowingly obstruct his investigation can be independently prosecuted for those actions even if whatever they were being investigated for under #1 or #2 produces nothing

    Three separate, essentially co-equal mandates. Make sense now?




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  27. TM01 says:

    @Scott F.:

    …holding to neutral civil liberties principles is not the appropriate response. As the Ship of State is listing seriously toward authoritarianism, it’s going to take a strong countervailing force in the opposite direction to restore any kind of balance.

    So, things are SO bad that you’re advocating elimination of civil rights and the rule of law.

    Despite no law breaking from Trump, you want laws and rights just tossed aside.

    All because you don’t like the guy currently sitting in the White House, and because you disagree with his policies.

    Well, let’s just say for the sake of argument that I agree with you all that Dershowitz may have changed his views over the years.

    But the one thing that hasn’t changed is the Left’s authoritarian, dictatorial tendencies.

    Eliminating legal rights, suppressing free speech, and squashing of alternate views has long been a staple of the Left.




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  28. TM01 says:

    @de stijl:

    that move to a Likud understanding of the world colors everything he has said since shortly after 9/11.

    It always comes back to The Jews, doesn’t it? Dershowitz would be great if he’d just stop supporting that damned Jewish State, the cause of all the troubles in the middle East.

    Right?

    Hell, I’m old enough to remember when around half (more?) of the Democrats at the DNC actually booed putting support for Israel, and the word God, back into the official Democrat Party Platform.

    Maybe it’s not Dershowitz going full Likud, but the American left going full anti-semite.




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  29. HarvardLaw92 says:

    @Warren Weber:

    Special prosecutors are supposed to be charged with investigating an actual, specific crime, with the law cited; “Russian collusion” doesn’t qualify

    I suspect you may be reading armchair lawyer forums, which is a mistake. The word “collusion” does not appear anywhere in the memo appointing Bob as a Special Counsel. Bob was empowered to investigate potential violations of (and conspiracies to violate) federal campaign finance laws in their entirety.

    SC mandates are not required to elucidate specific statutes. They’re allowed to be as broad (or as narrow) as the AG (or in this case, the acting AG with respect to this matter) decides they need to be. It seems that you have just gotten confused (or gotten some bad legal advice).




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  30. HarvardLaw92 says:

    @TM01:

    Speaking as a Jew – spare me the Gentile pearl clutching.

    There is nothing, per se, wrong with an American Jew supporting Israel – to the point that one’s loyalty to America isn’t subordinated to that support.

    I am a Jew. Indeed, I am the descendant of Shoah survivors. Essentially my entire extended family perished in the death camps, so I’m probably a tad more qualified to speak about what constitutes antisemitism than you are. This isn’t it.

    I wish Israel well, but I am not an Israeli. I am an American, therefore what it important to me is what benefits America. If that benefits Israel as well, then happy day, but – and this is important, so pay attention – I don’t care whether it benefits Israel or not. What is in the interest of America is a stable, peaceful Middle East. If achieving that involves throwing Israel under the bus to some (or all) extent and finding a rational platform which which to cooperate with the Arab & non-Arab (Iranians are NOT Arabs) powers that be, then so be it. Ideally, we’d find a way to have them all singing kumbahyah, but if that isn’t possible, then we do what stands the best chance of working, not what best protects Israel.

    The day that I start to care about what benefits Israel more than I care about what benefits America – which IMO is the place that Alan has ended up in – I should promptly commence aliyah and move my ass to Tel Aviv. That’s my advice to Alan as well. He’s an American, or he’s an Israeli. He doesn’t get to be both.




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  31. It is more than a little amusing, if not somewhat dis-consonant, to use Rawls as a means of explaining Dershowitz’s supposedly pure libertarianism, if anything because Rawls is usually cast as being anything but libertarian (indeed, Robert Nozick’s book, Anarchy, State, and Utopia, which is often considered one of the major intellectual works of libertarian philosophy in the 20th century, was essentially written as a counter to Rawls).

    Having said that, I get the original position argument, to a point.

    Of course, I am not as sure about Dershowitz’s supposed consistency and purity, unless by consistency we mean his adoration for attention. I concur with SenyorDave that Dershowitz’s views on torture undercut, to me, his civil libertarian bona fides (or even an original position way of looking at his policy views).

    I can agree that zealous criticisms of the Trump administration can lead to over-reach (both real and intellectual) by opponents. I am unconvinced that the Mueller probe, however, fit that description.




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  32. @TM01:

    Water boarding was deemed legal. It was used sparringly and was effective those few times it was used.

    This conclusion is based on facts not in evidence.




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  33. Just nutha ignint cracker says:

    @SenyorDave: On the other hand, your final description of Trump sounds exactly like tm01, too. Should I be saying “I see what you did” or “funny how that works” here?




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  34. @Warren Weber:

    Remember how Trump was one of the bigger targets of the “Me Too” movement? So many Democrats have been brought low by that, but Trump’s still going strong.

    I think it is a mischaracterization to suggest that “Trump was one of the bigger targets of the “Me Too” movement”–insofar as the whole point of the Me Too movement was to point out the societal prevalence of sexual harassment–and really started in the entertainment industry and grew to a more general social response.

    That Trump is a forerunner in the sense that he at least joked (to put the best spin possible) about sexual assault on tape and had a number of accusers prior to #MeToo is certainly true. Still, I do not think it is accurate the characterize MeToo as aimed at Trump.

    And yes, a number of Democrats have resigned as the result of MeTooesque accusations and Trump hasn’t. That has a lot to do with the fact that Democrats at the moment have decided not to tolerate such behavior, but this is not true of the GOP.




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  35. de stijl says:

    @TM01:

    It always comes back to The Jews, doesn’t it?

    Dude, since when does Likud = Israel, let alone Jewishness. You need to back the fuck up, because you are way off base. Do not lay your psychological problems on me, cuz I ain’t taking whatever weird shit your trying to put on my doorstep. Do not try. Not happening.




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  36. de stijl says:

    @de stijl:
    @TM01:

    TM01,

    I need you to recant what you said. What you said about me was incorrect, untrue, impolite and unacceptable. You lied.

    You purposefully lied about my comment just to make a poorly worded and strident nonsense thing that just piddled out to bleh nothing.

    If you’re going to lie about the content of my comment – the text, the subtext, the context – then FOR GODS SAKE do something with it!!!

    Just don’t blither – blather for a bit, feign outrage, harrumph, and then just let your hot take die like a squirrel hit by a Rav 4 driven by a single mom nurse on her way to her job at an old folks home who is so distracted by her phone she doesn’t even realize that she’s just killed a squirrel.

    If you are going to defame me, and least be a man about it and do it right. Follow-up and follow-through. Please tell me how my comment was anti-semitic. Please, please, please, TM01 show me where in my work where I was anti-semitic.

    And for fuck’s sake, learn how to construct an argument. You defamed me and followed that with just trash nonsense in which you had the temerity to claim victim-hood and righteous outrage. FUCK YOU!




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  37. An Interested Party says:

    It becomes tiresome to point out that being opposed to Likud policies does not make one anti-Semitic…on the contrary, an argument could be made that Likud policies, in the long run, are really going to hurt Israel…meanwhile, I can’t wait to hear the excuse-making and deviations from reality when Mueller actually does bring indictments against the Orange Blob or those in his immediate orbit (well, other than those already indicted/plea-bargained)…the signs so far certainly don’t look like Mueller has nothing, despite the naysaying of some around here…




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  38. Kylopod says:

    @TM01:

    It always comes back to The Jews, doesn’t it? Dershowitz would be great if he’d just stop supporting that damned Jewish State, the cause of all the troubles in the middle East.

    Like HL92 here, I am a Jew with relatives who perished in the Holocaust. My maternal grandparents were survivors. My grandmother, who was a teenager when she was sent to a death camp, just passed away last year at the age of 92.

    What I find most amazing about the way you’re crying anti-Semitism on the left is that you’re saying this under a Republican president who is, as far as I’m aware (and you’re free to correct me on this point), the first president in American history ever to have circulated an anti-Semitic cartoon.

    During the campaign, Trump retweeted a graphic showing “Crooked Hillary” next to a Star of David atop a pile of cash. Trump never apologized for the graphic; like everything else he does, he doubled down on it, claiming implausibly the star was actually a sheriff’s star (but where were the points at the end of it?) and that the message had nothing to do with Jews. In fact, reporters conclusively traced the graphic to a white nationalist.

    Fear, not, though: Trump was not alone in this sort of action. Over in Israel, Bibi Netanyahu’s son Yair retweeted an overtly anti-Semitic graphic about George Soros.

    https://www.jpost.com/Israel-News/Netanyahus-son-lashes-out-via-internet-again-504620

    Why would a Jewish Israeli be spreading anti-Semitism? My theory is that Yair (who’s only in his 20s) is hopelessly cut off from the cultural context that would enable him to recognize the symbolism. He’s been brought up in an environment with its own set of shibboleths, where he reacts positively toward anything condemning the hated Soros (himself a Holocaust survivor from Hungary) and believes that the only enemies worth bothering about are the enemies of the Jewish state–or, more precisely, the people his crowd have designated as such.

    One final point: there’s a certain delightful irony in the fact that I waited more than 12 hours to respond to your comment alleging anti-Semitism in partial reaction to something which I wrote. The reason I took so long to respond is because, as a Sabbath-observant Jew, I don’t use a computer on Saturday.




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  39. de stijl says:

    This is a dead thread, but my memory is long.

    I will remember what you tried and failed to do to me. You live in shame and I will remind you of that continually.

    @TM01: you commented here Saturday, May 12, 2018 at 10:21

    I know what you said.




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  40. Kit says:

    @Warren Weber:

    OK, we can get pedantic if you like. Here is the challenge:

    Ah, Warren, you really are a crank on this subject. Here’s the one and only challenge: reply to what I wrote, not to what you would rather discuss. I invite you to go back to any of my posts and show me where you disagree.

    That said, I see that HarvardLaw92 does want to discuss your favourite subject. I look forward to the back and forth.




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  41. Matt says:

    @Franklin: The FBI found all the emails either through direct recovery, via the people who received the email, or via the servers that handled/received/sent said emails. There’s copies left all over the place when you email someone. If you really want to delete someone off a hard drive so that it’s not recoverable you have to physically destroy it or write and rewrite every sector of the drive bit by bit at least a cycle of 20 times. Otherwise there will be a ghost of an image left that people in the CIA and NSA can recover data from. Hell they can grab data just by scanning the magnetic field of your computer as it runs.




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