No law student would be duped by the lies embedded in, "Alan Dershowitz calls Biden waiving Trump's executive privilege unconstitutional," an article touted by Trump on Truth Social. A 20-second google search shows how the Professor Emeritus at Harvard Law School spews nonstop BS.
"This is really an important story, because the idea that a sitting president can somehow waive the executive privilege of a previous president really wrecks the executive privilege, which is implicit in Article Two of the Constitution," argues Dershowitz, in reference a National Archives letter seeking government documents. "You can't have a privilege, which then your political opponent can waive...I can't believe that any constitutional scholar would agree with that." In other words, he can't believe what three constitutional scholars wrote in their unanimous D.C. Circuit Court decision in December 2021, which was that Trump's prerogative about executive privilege does not survive his term in office. Also, the waiver didn't come from a "political opponent," but from his elected successor. Ironically, Trump's claim of executive privilege is smoking gun evidence of his ongoing crime.
Dershowitz and other critics of the Mar A Lago search push out a firehose of falsehoods to distract from the simple threshold question: whose property is it? If it's government property, then Trump has no grievance. Period. All paper documents created within the scope of the Executive Branch are government property. Period. At risk of belaboring the obvious, anything covered by executive privilege is about the executive branch, meaning it's government property. Trump's possession of government property, beyond the control the National Archives, is illegal. Anyone who says otherwise is a liar.
Which is why this chatter about declassification and executive privilege, used to defend Trump's position, is complete nonsense. Trump's lawyers have never been able to articulate any legal claim. The most they can request is the return of any comingled documents that have nothing to do with his presidency. That's it. They can't say the search wasn't legal, because the public paper trail shows how he continued to flout the law. (They lied about Trump's "cooperation" in their court filing.) They can't say his executive privilege was compromised, because no one intends to disclose the documents Trump illegally retained. Which is why Trump's lawyers merely refer his undefined "privilege."
Dershowitz and the other dishonest lawyers who argue on behalf of Trump want to confuse the public into believing the Mar A Lago search was akin to the FBI's seizure of Rudy Giuliani's cell phones and computers, which is like comparing apples to sardines. The government seized Giuliani's private devices to search for electronic evidence of a crime. The FBI retrieved paper documents in Mar A Lago, which are government property, because Trump's possession of them was itself an ongoing crime. In Giuliani's case, a special master was appointed by the court to sort out any private communications covered by attorney client privilege on his personal devices. With Trump, the only issue is whether he comingled his entirely personal papers with government papers, a much simpler sorting process that the government has almost certainly accomplished by now.
According to Rolling Stone and CNN, Trump actually believes these paper documents are his property, which can be withheld from the National Archives. Apparently, he got that crazy idea because another dodgy lawyer, Tom Fitton from Judicial Watch, told him so because of a 2012 court decision that went against Fitton. President Clinton, while he was in office, sat for extensive interviews that were audiotaped by Taylor Branch, who in 2009 published The Clinton Tapes: Wrestling History with the President. Judicial Watch sued to get access to the tapes, which were neither controlled by the National Archives nor the Clinton Library. The D.C. District Court ruled that the tapes were not covered by the Presidential Records Act. Fitton must have gotten the crazy idea that interview tapes are the equivalent of official government documents, so Trump could withhold whatever paper documents he wanted.
As for Dershowitz's dissembling, here's a quick explainer. A legal privilege is a presumption that one party may prevent disclosure of a confidential communication to another party, as when a client may prevent disclosure of his lawyer's advice. There's no such thing as an absolute privilege. It's called a privilege--as opposed to a right, like the Fifth Amendment right against self incrimination--because a privilege may be overcome in court. With every privilege, the final determination is made by a judge, who may review the private communication to determine if a privilege is applicable, or if the privilege may be overcome because of other legal concerns. Sometimes, a confidential communication by and with the President qualifies for protection from disclosure under the doctrine of executive privilege. Executive privilege may have a Constitutional dimension with regard to separation of powers, when private communications within the executive branch are disclosed to the legislative branch, or to private litigants. Trump had argued the issue of executive privilege to the Supreme Court, over whether White House records could be disclosed to the House January 6th Committee. As noted above, the D.C. Circuit had ruled that Trump's executive privilege does not survive his term in office and there were compelling reasons why executive privilege should be overcome in this Congressional inquiry. The Supreme Court ruled that the compelling reasons for overcoming privilege shall apply in that case, so any ruling as to whether executive privilege survives a term in office shall be deferred. But disclosure of any executive branch documents to the Justice Department is within the same branch of government, which is one reason why, contrary to Dershowitz's BS, there's no Constitutional issue at Mar A Lago.
Eventually someone will write a book about once-respected lawyers who, overcome by grandiosity and malignant narcissism, devolved into degenerate liars in service of Donald Trump. Everyone knows about Rudy Giuliani and Sidney Powell. Alan Dershowitz, who lied in his bogus $300 million lawsuit against CNN, and who threatened to sue a Martha's Vineyard library for declining to give him a speaking platform, is no less ridiculous
