So . . . . Dershowitz says we must have a rule of law, but not when the culprits (or their stand-ins) lose an election. That's some rule of law, right? And why should there be no rule of law -- no prosecutions -- if the culprits (or their stand-ins) lose the election? Because there wouldn't be any prosecutions if their side won it. The winners can't prosecute the losers because the losers, had they won, would not prosecute themselves. Again, that's some rule of law, huh? Ya gotta love it, don't you?
Let us now put the matter in the concrete context of the current election. Dershowitz's point is that, if Obama wins, an Obama administration shouldn't seek prosecutions of Bushites because, if McCain wins, a McCain administration (presumably) wouldn't seek them. But how about turning the matter around, as law students learn to do in their very first week of law school. Why couldn't we equally say that, if McCain wins, his administration should consider and, if the facts warrant, bring prosecutions because, if Obama wins, his administration would consider, and if the facts warrant, bring prosecutions?
To put it simply, if a surmise as to what one of the two administrations might do is to control action, then why shouldn't the controlling surmise be what Obama would do rather than what McCain would do? This is only the more true because, as I've often discussed elsewhere, the rule of law, accountability for horrid criminal conduct, and what future presidents might do are all likely to depend on Bush, Cheney and Co. suffering criminal punishment if they have committed ghastly crimes, as so many of us think true beyond honest dispute.
In jurisprudential terms -- which surely are not familiar to most laymen -- the question relates to the doctrine of so-called neutral principles of law, a doctrine that was a major bone of contention in the early 1960s. Ignoring that the facts of an initial case might cause one principle to be adopted rather than another, the doctrine held that neutrality requires that the adopted principle must nonetheless be applied in a subsequent case which might have quite different facts. It ignored also that, if the second case had come first, a very different principle might have been adopted in the first place because the facts were so different.
Dershowitz's logic is analogous to the now discredited neutral principles theory (which Richard Posner once demolished absolutely). Dershowitz is trying to persuade laymen unfamiliar with legal legerdemain, with which he has been intimately familiar for over 45 years, that because McCain (presumably) would not prosecute, Obama shouldn't, and he is deliberately ignoring that one could reverse it by saying that since Obama would prosecute, McCain must also. For one of Dershowitz's brilliance to ignore this almost has to be deliberate -- he cannot be completely unaware of it because to urge such lack of awareness would again credit him with a stupidity he does not possess. What he has done simply fuels the fire of those who say he arrives at positions and then finds or invents alleged reasons in support later. It is "interesting" -- that's a nice word for it -- that Dershowitz claimed at the debate to be, so to speak, the great "complexitor" bringing life's complexities and deep analysis to the unenlightened simpletons of Harvard, yet he chose to ignore the simplest of complexities: chose to ignore that you would get the opposite result if you simply employed the opposite logic that Obama would prosecute to uphold the rule of law, so therefore McCain likewise should prosecute. So much for the self-professed avatar of complexity and sophisticated analysis.
To support his position, Dershowitz says that a prosecution will inevitably be seen as political partisanship because in our system, unlike others, the Attorney General is both the chief law enforcement officer and a political adviser to the President. What he is saying defacto is that the framers set up a system in which even arch criminals in the highest office cannot be prosecuted subsequent to holding office. This might be real news to the framers, who not only wanted law to rule, not kingly tyranny, but who specifically provided that an official can be prosecuted after being convicted and impeached, a prosecution that necessarily would have occurred in a subsequent administration if it were a president who was impeached.
The Dershowitzian idea that the Constitution has established a system under which serious crimes cannot be punished, and serious criminals therefore go scot free, is, to put it mildly, bizarre. And from the complexitor analyst of Harvard yet. Nor can Dershowitz admit that a special prosecutor could do the job. "These ersatz functionaries bring problems of their own to the criminal justice process," he says, "as evidenced by the questionable investigations that targeted President Bill Clinton, vice presidential chief-of-staff Lewis 'Scooter' Libby (full disclosure: I consulted with both of them, without fee, about their cases) and others over the past decades." One would think Dershowitz never had heard of Archibald Cox or Leon Jaworski, who were special prosecutors when serious crimes were at stake, as now, instead of trumped up nonsense as in the Clinton matter. One would think him a naif unaware that politicians did everything they could, successfully, to destroy or evade or minimize the efforts of other special prosecutors, destructive conduct that should be excoriated and beneath contempt in the present case. As for the Libby case -- where Fitzgerald roared like a tiger but brought forth only a mouse (and venal Cheneyian politics almost surely got involved to limit the results, consequences that history likely will reveal far more fully) -- it is frankly preposterous to call the investigation "questionable," an adjective that partisanly reflects Dershowitz's "consult[ation]."
As well, one hardly knows what to say about the fact that Dershowitz made sure to tell us he consulted with Libby (and Clinton) "without fee." Are we supposed to think he felt so strongly that out of principle, not publicity seeking, he consulted at a big financial sacrifice? Such thought comes hard when one realizes that, as far back as the O.J. Simpson case in 1994 -- when lawyers' fees (high as they already were) were much lower than later -- it was reported that Dershowitz was being paid between 400 and 650 dollars per hour. One can only wonder what his hourly fee must be today. One is not impressed with an implicit claim that out of principle (not publicity seeking) he sacrificed financially for Clinton and Libby. Dershowitz goes on to claim (in the words of a question he puts) that there is "too great a risk of criminalizing policy differences" when a subsequent administration prosecutes members of a prior one; a risk that will have "a chilling effect on creative policy making and implementation."
To prove his point he says that a "politically appointed prosecutor, imbued with partisan zeal, could find technical violations of the criminal law in some envelope-pushing policy of virtually every administration." Then, clearly attempting to warn us by the example of the notorious Beria while pretending not to be doing this, he says "One does not have to be as ruthless as Laventri Beria -- who infamously assured his boss Joseph Stalin 'show me the man and I'll find you the crime'" in order to find a basis for a prosecution. "Even the most well-intentioned and honorable partisans," continues Dershowitz, "may see 'genuine crimes'" by their political opponents where in fact there is "nothing more than 'really bad policies.'"
Dershowitz's argument is in a crucial way "fact free" for it ignores the actual facts of the situation and is couched in abstractions only. He has to do this because the actual facts devastate his argument. (Dershowitz thus has to pull another lawyer's trick -- the trick of arguing abstractly -- because the actual facts are so devastating to his point. In this connection, there is an old saying in the law that you should argue the facts, but if you don't have the facts, argue the law, and if you don't have the law, baffle them with bullshit.)
We are not dealing here with mere technical violations, or Beriaesque invention, or possibly desirable "creative policymaking." We are dealing, rather, with outright serious crimes banned by numerous international and domestic conventions and statutes, with crimes whose ban is an outgrowth of the Nazi era that Dershowitz reviles (as he did at the Harvard debate). We are dealing with extensive torture, with murder -- murder by the scores apparently, with savage beatings of prisoners, very likely with aggressive war that has resulted in scores or hundreds of thousands of deaths and at least as many horrible injuries, with imprisoning and holding incommunicado for years people who often were innocent. Torture, murders, aggressive war, savage beatings, holding innocent people incommunicado for years -- these are mere "technical violations"? These are desirable "creative policies" which should not be "chilled"? These are Berian inventions of crime?" I don't think so. These are the essence of serious crime.
Dershowitz's effort to ignore the actual facts is pitiful. It is not only pitiful, but is also a rejection of Nuremberg, though Dershowitz would of course feel forced to deny this. It is, additionally, an example of yet another lawyer's trick. By bringing up, in the abstract, possibilities of future mistakes or of going too far in the future, while ignoring what the actual facts of the present are, Dershowitz seeks to obtain immunity for clear, actual present crimes by bringing up hypothetical possibilities of punishing people wrongly in the future for conduct that isn't clearly criminal. This kind of logic, employed all the time by lawyers, is the kind of argument that lawyers call a "parade of horribles." Dershowitz thus posits that those who might at a trial be found horribly guilty of atrocious crimes now should not even have to face trial lest some hypothetical person be tried in the future for conduct that may not be a crime.
That logic, of course, if widely employed, would be the end of all criminal law. Nobody could be tried for clear crimes now lest someone be wrongly tried in future.
Dershowitz also claims there should be no prosecutions because Congress could investigate, impeachment is available "[i]n extreme cases," and culprits can be voted out of office. Once again, Dershowitz is fact free. For Viet Nam and Iraq have taught us, to our consternation, that these supposed remedies are pretty much useless. This needs no elaboration, I'm afraid.
Somewhat strangely, near the very end of his article, after lengthily reviling prosecutions, Dershowitz admits that there can be instances where prosecutions would be alright: in the "extremely rare situation" where the existence of criminal intent and crime are "so apparent to everyone" -- to everyone, mind you -- that no reasonable person would suspect partisanship. There is likely to be, of course, no such situation where the existence of crime is universally seen to exist and suspicion of partisanship therefore nonexistent. There are always people -- tens and scores of millions of people -- who see horrible acts as permissible, or at least as well intentioned if misguided efforts not deserving of punishment. Such is the case with Bush. Such was the case with Nixon. Such was the case with unrepentant Germans in 1945 and 1946.
To Dershowitz, perhaps, the views of Nixonites, and of Germans who (correctly?) suspected victor's justice, made them unreasonable in suspecting partisanship. But forms of political partisanship were present at Nuremberg and such partisanship would have existed in support of prosecuting Nixon. Nonetheless what was, or would have been, criminally prosecuted also were crimes. And one wonders -- does Dershowitz claim there is prosecution-preventing partisanship when Israel puts Arabs on trial for blowing up or otherwise killing Israelis? Why does one doubt it?
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