When President Nixon was threatened with impeachment, prosecution, or both for his obvious crimes, members of his own party joined in the call for his resignation. No such bipartisan consensus has arisen today.
More than a year ago press accounts were published of conversations President Biden had with associates. He allegedly complained about the attorney general not being aggressive enough in pursuing President Trump for his role in the January 6 events. This is what the press reported: “Biden had ‘said privately that he wanted Mr. Garland to act less like a ponderous judge and more like a prosecutor who was willing to take decisive action over the events of January 6th.’”
I take Mr. Biden at his word when he says that he has never directly interfered with prosecutorial decisions made by the Justice Department, but there can be little doubt that Attorney General Garland, who serves at Mr. Biden’s pleasure, was aware of the president’s strong feelings when he authorized the prosecution of Mr. Trump for his inexcusable, but in my view constitutionally protected, role in the terrible events of January 6.
As I have said for years now, when the leading candidate against the incumbent president is prosecuted, especially at the urging of the incumbent president, the case against him must be bulletproof, airtight and beyond any reasonable doubt. To paraphrase Mr. Biden, the prosecutor in such a case should act more “like a ponderous judge” and less like a zealous prosecutor. He should lean over backwards to assure not only that justice is being done, but also that it is seen to be done by all reasonable people.
The only alleged crime that meets this high bar is the indictment in Florida based on the videotape of Mr. Trump waving classified material in front of journalists and admitting that he had not declassified them and that they are still secret. This piece of evidence is indeed a smoking gun, but the crime itself is not nearly as serious as the ones charged in the January 6 indictment. The remaining indictments — the one at New York City and the current one in DC — are highly questionable and certainly subject to criticism by reasonable and objective people.
The essence of a Banana Republic — the description applies equally to some Eastern European and Asian authoritarian regimes, as it does to South American — is the criminal prosecution of political opponents by incumbent leaders. We are not a Banana Republic and we are not close to becoming one. Yet this most recent indictment, following Mr. Biden’s public demand for the prosecution of his political opponent, brings us one step closer to banana land.
I have no doubt that if the shoe were on the other foot Mr. Trump would be demanding prosecution of his political opponents, but two constitutional wrongs do not make a constitutional right. It is true that the law must apply equally to all, but it is equally true – and it has always been the case – that the law should take into account the realities of our democratic electoral system. Thus the standard for an incumbent administration prosecuting its political enemies, and especially the strongest opposition candidate, must be considerably higher than in the ordinary case because Democracy itself is at stake.
In describing the standards that must be employed in such highly political cases, I have articulated two criteria – the first is the “Nixon standard.” When President Nixon was threatened with impeachment, prosecution, or both for his obvious crimes, members of his own party joined in the call for his resignation. I am confident that if Mr. Trump had been caught on tape offering or accepting a personal bribe, many Republicans would join the demand for his prosecution. But the current indictments, and especially the most recent one, do not come close to meeting the daunting Nixon standard. (RELATED: ALAN DERSHOWITZ: Jack Smith’s Dubious Indictment Isn’t The Slam Dunk Trump Haters Think It Is)
The indictment against Mr. Trump for possession of classified material meets the highest evidentiary standard, but it does not meet the standard for a crime that is sufficiently serious to warrant prosecution in the midst of a presidential campaign. Perhaps the superseding indictment alleging that Mr. Trump ordered the destruction of videotapes may meet that standard, but the evidence cited in the indictment seems questionable and based largely on hearsay statements.
This brings us to the January 6 indictment. Here the crime is very serious, but the evidence seems lacking. I am aware of no direct eye- or ear-witness testimony that would prove beyond the reasonable doubt that Mr. Trump himself knew and believed that the election was fair and that he had lost. Indeed the evidence of which I am aware strongly suggests that Mr. Trump had convinced himself — quite wrongly in my view — that it had been stolen from him. If this is the case then any prosecution under this indictment would fail to meet the Nixon standard. (RELATED: ALAN DERSHOWITZ: The Trump Indictment Fails The Nixon Test)
The other standard that must be met is what I have called the “What Aboutism” question. It is entirely fair to ask: “what about Hillary Clinton? What about Joe Biden? What about Mike Pence? They too possessed classified material after they left office.” There are of course considerable differences among these cases, especially with regard to cooperation. But failure to cooperate is not a crime; it is a right under the Fifth and Sixth Amendments.
No incumbent administration should ever prosecute a leading candidate against its president unless there is a widespread consensus among reasonable Americans of all parties and backgrounds that the prosecution is beyond legitimate controversy. None of the current indictments, in my view, meet that daunting standard.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, and the author most recently of The Price of Principle: Why Integrity Is Worth The Consequences. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute, and is also the host of “The Dershow” podcast. This piece is republished from the Alan Dershowitz Newsletter.
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