The Case Against the Democratic House Impeaching Trump

by Alan Dershowitz

  Many people are so upset with President Trump, and for understandable reasons, that they just do not want to hear a constitutional analysis that may help him avoid prosecution or impeachment. Many of the same people would agree with my constitutional arguments if I were making them on behalf of Hillary Clinton had she been elected and Republicans tried to prosecute or impeach her. Indeed, I made similar arguments on behalf of President Clinton during the Ken Starr investigation, and my Democratic friends loved my arguments, and loved me, for making them.

  Yet, now that the shoe is on the other foot, everything is different. This has led some of my vociferous critics to accuse me of complicity with evil. One professor has even compared me to German intellectuals who helped bring Hitler to power.

  It is pure McCarthyism to equate support for the constitutional rights of a person, or even a president, to complicity in his policies. I oppose Trump’s policies on immigration, family separation, Charlottesville, gun control, taxation, and health care. I voted against him, contributed to his opponent, and campaigned for her. Yet, I am accused of being complicit in his policies because I defend his constitutional rights.

  This is not the first time McCarthyite tactics have been deployed to try to stop me from defending the constitutional rights of those with whom I disagree. When I was a college student, I stood up for the rights of communists despite my strong opposition to communism. When I was interviewed by Salon, the writer went out of his way to thank me for defending his mother, who was a communist. Then, the right-wing McCarthyites accused me of complicity with communism. Today, the left-wing McCarthyites accuse me of complicity with fascism.

  To make the point that I would have written the same book had Hillary Clinton been elected president, my publisher produced an alternate cover with the title “The Case Against Impeaching Clinton.” My publisher also produced a special cover for Martha’s Vineyard, which is a plain brown paper cover with the real title in tiny print, so people could secretly read it in the beach without being accused of complicity.

  All this may sound humorous or petty, especially when people on Martha’s Vineyard focus on parties or other social events, about which I could care less. They also focus on the fact that the New York Times has four stories about me in the space of a week, despite the reality that I did not ask for these stories but rather just responded to requests from reporters.

  Focusing on these petty aspects masks a much larger problem that efforts to silence me are a symptom of the dangerous time in which we live. These days, debate is being stifled on university campuses in the name of political correctness, a term coined by the Stalinist regime. Even the ACLU is now placing free speech and due process lower in its priorities than other partisan issues that earn the organization more contributions.

  That is why, despite the attacks and efforts to silence me, I will continue to speak up on behalf of the democracy our Framers laid out and the civil liberties of all Americans in this country, including our president. As I argue in the introduction to the first section of this book: “If a controversial president is denied constitutional protections, then any citizen can be denied constitutional protections. That is why this issue is so important to all Americans.”

  That is why we should begin listening to each other, should welcome dissenting views, should demand that the marketplace of ideas be kept open, and should act with civility toward each other, even if we disagree.

  Coarseness, Bigotry, and Threats on Both Sides of Trump Divide18

  It is widely reported in the media that President Trump and his supporters have “coarsened” the dialogue and resorted to name-calling and personal attacks, rather than reasoned discourse. There certainly is some truth in this accusation, but it also is true that many of President Trump’s opponents have contributed to this coarsening and name-calling.

  Both extremes have rejected nuanced dialogue and opted for gutter accusations, false comparisons, gross exaggerations, and even threats. The emails, messages, and tweets directed at me reflect this—a disturbing nationwide trend that transcends any individual. If I am receiving these curses and threats, so must many other people on all sides of the political spectrum. So this op-ed is not about me. It is about those who send these messages and what they say about today’s America.

  The verbal attacks on me for defending President Trump’s civil liberties—as I would be defending Hillary Clinton’s civil liberties, had she been elected—fall into several categories: bigotry (ageism, anti-Semitism), threats and curses, false comparisons to Hitler and other dictators, false personal accusations (that I am being paid or blackmailed by President Trump) and, finally, just simple nastiness.

  Let’s begin with ageism. Rather than criticizing my ideas, many emails call me “senile,” “old and feeble” and “impotent.” The CFO of a large company who boasts that he has only one employee “over 50” says “You’re tired and it’s time for retirement,” and demands that I “move aside, old man.” Another one demands that I “shut the f--- up old man.”

  Then there is the anti-Semitism, anti-Israel extremism.

  One email that begins by calling me “a piece of s---” continues with the following: “Despite what Zionists such as yourself want the rest of us to believe, the world doesn’t revolve around Jews.” Another says that alleged support for President Trump is “all about Jerusalem as the capital, and loving Israel to you, just move there.” It wishes “with all my heart that you get cancer and die a painful, disgusting death, you f---, you traitorous f---,” and ends with “Die! Die!” Yet another accused me of saying what I say for “the Money” and accusing my “home country,” Israel, of being like the “f------ Nazis.” He ends his email by acknowledging that “I don’t like Jewish people.”

  Then there is a lawyer, with twenty-five years of experience, who calls me “a despicable, unethical, lying scum bag” and ends with “Your [sic] a Jew, but if there is a hell, you are destined to burn in it.” Finally, an email supporting Cynthia Nixon says, “f--- Israel,” and continues: “The only thing the average American ever got from our ‘relationship’ with that country was an early death on 9/11.”

  Then there are the anti-Trump extremists who compare Trump to Hitler and compare those of us who defend his civil liberties to those who brought Hitler to power.

  One email addresses me as “Alan ‘Goebbels’ Dershowitz.” Another accuses me of being just like the “public intellectuals” who facilitated Hitler’s rise to power. (Comparing Trump to Hitler is a form of soft Holocaust denial: If Trump is Hitler, there were no gas chambers, death camps, or killing fields in the Third Reich.)

  Most disturbing are the threats and curses. One email warns me to be very careful, threatening to “arrange a woman to start accusing me.” Another says “we the people will make sure” that I die “for supporting an act of treason.” It goes on to say “F--- you and F--- Trump you F------ Trump loving commie…. I piss on you boy.” Another urges me to “put a bullet in your head … kill yourself and do us all a favor.” An educated woman told people that if she saw me she would “stab me through the heart.”

  Nor are these crude attacks directed only at me. They are directed at my family as well, using words like “You and your family members are evil and disgusting.” A female family member received an email calling her an “entitled bitch” with “no f------ heart.”

  Strangers come up to me and to my family, cursing and threatening. A friend is insisting that I should have armed security.

  I also receive crude emails from Trump supporters, though not nearly as many. Here is one representative missive:

  So we’re all now waiting for Jew communist Ruth Bader Ginsburg to soon enough drop dead. Like John McAsshole. No joke. I’m soooo sick of Democraps and other assortments, flavors of Soviet socialists by whatever name … Communists Nancy Piglosi, Maxine [Black Racist] Waters, or Jewish Chucky Cheese Schumer—no, no, no!!!) That now I foresee the final twilight of commies infecting our governmental institutio
ns. Yes!! Bring it on! Love Trump!!

  This is what is happening to America—from both sides. Many of the anti-Trump zealots are as crude, ageist, anti-Semitic, and threatening as pro-Trump extremists.

  It is important to point out—as many already have—these negative characteristics when they emanate from Trump supporters. It is equally important to expose them when they come from Trump opponents. So I will continue to collect and publish bigoted communications that I receive from both sides.

  How the Hard-Left Only Helps the Republicans and Donald Trump19

  The hard-left is helping Republican candidates and Donald Trump in numerous ways. First and most obviously, by running candidates such as those in the Green Party, the hard-left siphons off votes that otherwise would go to Democrats. Third parties may well have cost the Democrats the 2000 and 2016 presidential elections, because the Green Party siphoned off enough votes to make the difference in crucial states.

  Green Party supporters argue that their voters would not have come out to vote if they had to choose between Democrats and Republicans, so they claim that they have not siphoned off any votes from Democrats. While this may be true of some extremists who see no difference between Democrats and Republicans, it certainly is not true of many core voters attracted to the environmental policies of the Green Party, but who would most certainly vote and, if they did, would vote for Democrats.

  Then there are the off-the-charts extremists like Susan Sarandon who actually prefer to see Republicans such as Donald Trump elected over Democrats such as Hillary Clinton. Her absurd argument is that a Trump presidency will bring revolution more quickly than would a Clinton presidency. Fortunately for America, these extreme revolutionaries represent a tiny fraction of the electorate across the country.

  Another way the hard-left helps Republicans and President Trump is through their exaggerations and gutter tactics. The claim by Rosie O’Donnell that Trump stole the 2016 election only emboldens his base with the denial of his victory. Her rhetoric, and that of others like her, turns off centrist voters and shifts some of them to the Republican camp. So do the constant personal attacks by people like “Morning Joe” Scarborough and Mika Brzezinski, who recently devoted significant airtime to talking about the size of Trump’s fingers. The reality that Trump himself engages in similar attacks does not diminish the negative impact of gutter tactics.

  The attacks on Trump administration officials in restaurants and other public places also turns off centrist voters who cast ballots for Democrats in the past but who are deeply offended by tactics they associate with supporters of the hard-left. If Republicans manage to hold on to one or both chambers of Congress in the midterms, it will be at least in part because of wounds inflicted on the Democratic Party by extremists on the hard-left. The highly publicized candidacies of Democratic socialists such as Alexandria Ocasio-Cortez and Cynthia Nixon surely will drive many centrist voters out of the party. The election of Keith Ellison as deputy chairman of the Democratic National Committee has alienated moderates who remember his close association with Louis Farrakhan.

  Is there anything the Democrats can do before the midterms to bolster their chances of winning one or both houses? I think there is. The Democratic Party should appoint centrist liberal leaders to positions of authority within the party and should emphasize the centrist liberal policies that have been the key to their success since the days of Franklin Delano Roosevelt. We are a country of centrists and one of the few in the Western world that has never had successful communist or fascist parties.

  America thrives at the center. Reasonable voters can disagree about whether centrist liberalism or centrist conservatism is best for the country. That is what most previous elections have been about. But, now the extremes in both parties are advocating hard-left and hard-right positions that do not serve the interests of average Americans.

  The Democrats need more centrist liberal candidates like Bill Clinton and fewer socialist candidates like Bernie Sanders. Young people may be energized by extremism, but in the end they simply do not vote, at least not in the numbers that are expected of them. The Democrats cannot count on “flash in the pan” extremists to energize young voters. They need centrist candidates who appeal to all segments of the party.

  There are such candidates out there. Some may not be widely known, at least not yet. Remember that Bill Clinton was an unknown governor of Arkansas just months before he won the Democratic nomination for president. The Democrats should not abandon the center, despite their loss with a moderate candidate in 2016. Democrats can win by attracting centrists of all ages, ideologies, and backgrounds. Moving to the hard-left is a guarantee of failure, both in the short term and the long term.

  Immigrants Who Change America Are Its Lifeblood20

  Laura Ingraham’s attack on illegal, and in some cases legal, immigration harks back to a time when my forebearers and hers immigrated to this great country, and were accused of changing it for the worse.

  Here is what Ingraham said:

  [In] some parts of the country, it does seem like the America we know and love doesn’t exist anymore. Massive demographic changes have been foisted on the American people. They’re changes none of us ever voted for, and most of us don’t like…. Both illegal and in some cases legal immigration, which, of course, progressives love.

  When my Jewish Polish grandparents came to America at the end of the 19th and beginning of the 20th century, many white Protestants whose forebears had been here for generations complained that these “different” immigrants were turning America into a country they didn’t “know and love.” To be sure, my grandparents were different. They spoke a different language. They looked a little bit different. They were poor. They were uneducated in the ways of America. They worshiped differently. And they voted Democrat. But despite these differences, or even because of them, they and their fellow Eastern European immigrants loved America, and they and their descendants contributed greatly to our nation’s success in the twentieth and twenty-first centuries.

  Ingraham’s forbearers came from Poland and Ireland. The anti-Polish and anti-Irish sentiments in this country were widespread. Discrimination against Polish and Irish immigrants was pervasive. Yet their descendants, too, have contributed significantly to the success of this great country.

  These are a few of the many individuals caught up in President Trump’s dragnet.

  I went to Brooklyn College, a free public university, where virtually all of my classmates were the children or grandchildren of immigrants. Like my brother and me, most were the first in their family to attend college. Even when I graduated first in my class from Yale Law School, and was editor in chief of the Yale Law Journal, and a future Supreme Court law clerk, I was turned down for a job by thirty-two out of the thirty-two Wall Street firms to which I applied. So were some of my Irish and Polish classmates. These firms wanted white Protestants of British and German stock, who they regarded as “the real Americans.” We had to go to work for smaller law firms that were open to the children and grandchildren of immigrants.

  Now some of these same descendants of immigrants—like Laura Ingraham, Stephen Miller, and Steve Bannon—are trying to close the door to broad legal immigration because they don’t like how the current immigrants look, speak, vote, and raise their families. It reminds me of the Russian immigrant comedian Yakov Smirnoff, who had a humorous bit in which he would be standing in front of the Statue of Liberty thanking her for welcoming him to this great country, and then, as he was leaving, he turned back to Ms. Liberty and shouted, “Now please keep the rest of those damn immigrants out.”

  Nor would “merit” immigration assure us the kinds of immigrants who would contribute significantly to our country. It is impossible to judge the future merits of potential immigrants who are deprived of educational and other opportunities. Previous immigrants who have changed the country for the better would never have passed any so-called merit test. Many came from what President Trump would regard a
s “shithole” countries. When my grandparents came here, all of Eastern Europe was characterized that way, and look at what these immigrants have contributed to our country.

  It is a cliché to say that we are a nation of immigrants, but the cliché is so true. Every year, the New York Times runs a full page that shows the faces and contributions of immigrants to America. They have contributed to medicine, technology, economics, literature, law, philanthropy, and so much else. It is hard to imagine an America without immigrants who look, speak, and think differently than the original American colonists.

  It is reasonable to try to control our borders against massive illegal immigration, even despite the reality that illegal immigrants, too, have contributed to America. My own grandfather illegally secured false affidavits from neighbors in order to rescue twenty-nine of our relatives from the Holocaust. He got these neighbors to sign false affidavits about their need for religious functionaries in nonexistent basement synagogues. Though himself a lawful man and a grateful immigrant, he was willing to break the law to save lives. One of those he saved became the chairman of the engineering department of Columbia University. Another became a prominent rabbi in Los Angeles. Their children and grandchildren continue to contribute greatly to the economy and culture of this diverse country.

  This is not intended to justify lawlessness and illegal immigration, except in the most extreme cases like the Holocaust, when racist barriers to immigration precluded Jews from escaping Hitler’s gas chambers. But it is to respond to Ingraham’s point that “both illegal, and in some cases, legal immigration” have changed our country. Yes, immigration has changed our country, mostly for the better. To be sure, some illegal immigrants, and even some legal immigrants, do not contribute to our country. But that is true as well of Mayflower descendants (our first immigrants).