Alan Dershowitz recently penned an op-ed piece in the New York Times in which he argues that the swelter of investigations into what is now widely known as the "Trump-Russia" controversy reflects an alarming trend in America which he describes as the "criminalization of political differences." While professing to be a "loyal liberal" who differs often and deeply with Trump, both on matters of personal style and public policy, Dershowitz contends that criminal law inquiries into actions taken by Trump within his "constitutional powers," including his firing of FBI Director James Comey, impermissibly stretches what should not be "elastic criminal laws" to cover political acts. Yet there is far more to it than that.
Curiously, after making this argument over nine densely-written paragraphs, Dershowitz moves to a related but decidedly distinct subject in a tenth paragraph: whether Trump can be guilty, under criminal law, for actions taken before the election. On this subject, he offers what can only be described as an extremely shorthand legal opinion:
Even if it were to turn out that the Trump campaign collaborated, colluded or cooperated with Russian agents, that alone would not be a crime, unless the campaign asked them or helped them to commit criminal acts such as hacking.
The two timeframes - what Trump did before the election, and what he has done since - are obviously different. But if a distinction is allowed to be drawn that precludes an inquiry into the potentially deep connection between what Trump may have done earlier, and what he is doing now, then nothing can hold Trump accountable if in fact these two things are somehow tied. That is, even if Trump won the Presidency by committing treason, and even if this treason continues to compromise his conduct as President, Dershowitz essentially argues it does not matter, which in effect posits the following maxim:
"When you run for President, you may do anything to curry the favor, influence and support of a powerful, hostile foreign power, to both support your candidacy and undermine your opponent's, as long as you do not request or assist such efforts. If you win the election, whatever you did earlier cannot be viewed as relevant to how you choose to use your powers as President, including whether you are using them to provide a quid pro quo for such favor, influence and support you received earlier."
At face value, this maxim is so astonishing that it is hard to know whether Dershowitz is being serious in offering it for our consideration. Regardless, on at least three levels of reasoning, it quickly becomes apparent how specious it is. Let's start with a technical reason, then consider a factual reason, and conclude with a constitutional reason. Each will show, on a successive level, that unless an officeholder's legitimacy can be challenged, our system of government is placed in peril.
1. Technically, Trump's presidency should never have happened.
Remember how, soon after the election, an uproar arose over whether there should be "conscientious electors"? The concept was that as a party-chosen elector in your state, you should not automatically embrace the widely-followed practice of serving as your party's rubber stamp in certifying your state's election results. Instead, you are empowered to exercise independent judgment at least to the extent described in Federalist Papers: No. 68, by Alexander Hamilton, to prevent a scenario that must be avoided at all costs:
Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this than by raising a creature of their own to the chief magistracy of the Union?
Through the Electoral College, Hamilton believed the constitutional convention successfully "guarded against all danger of this sort," by causing the election to be "referred ... in the first instance to an immediate act of the people of America" with the failsafe that a college of electors - persons of consequence in their respective states who are not office holders themselves - would ensure that there was no tampering in the process and who themselves, could not be tampered with, because to do so would require a vast level of corruption, requiring "time as well as means," that would be impossible to achieve. A few centuries later, many Americans now see the Electoral College as the useless appendix of the Constitution and many commentators argue it should be surgically removed. But if it had served the purpose envisioned by Hamilton - to avoid the outcome an election tainted by "cabal, intrigue and corruption" - it would have rendered the entire Trump-Russia controversy moot.
Now suppose for the sake of argument that Trump committed treason in his actions relating to Russia; that proof of his guilt is incontrovertible; and that his treason was instrumental in elevating him to the office of the Presidency. In that case, if electors had not voted solely on party lines - but instead acted for the sake of country and as a bulwark against a foreign power seeking to gain "an improper ascendant in our councils" - the Trump presidency never would have happened. Returning to the present reality, we can reassure ourselves that when the Electoral College cast its votes, this proof was not yet available. Thus, we proceed to the second, factual reason why an investigation is still required.
2. Factually, Trump did ask foreign agents to commit crimes on his behalf.
Dershowitz's observation that Trump might be criminally charged for having "asked or helped" a foreign power to help him win the election raises an interesting question. In keeping with his view on the "inelasticity" of criminal law, Dershowitz may consider the verb "to ask" to require a very narrow reading in this scenario. So, for example, Trump's remark on the stump encouraging Russia to release hacked emails should arguably be taken as sarcasm, as Trump contended, not as an "ask." It may well have not been sarcasm, but instead an intriguing verbal clue pointing to a vast litany of circumstances, meetings, trips, key players involved, signals given, and documents passed that have since appeared which, in their totality, strongly suggest that Russia not only directly, yet covertly, helped Trump win, but that it did so precisely because its leaders knew that Trump actively sought and encouraged the giving of such help.
How and why did this happen? Putin has long hated Hillary Clinton. An equal and perhaps even more compelling reason is that Russian intelligence groomed Trump as a "Manchurian candidate" who would be willing to prostrate himself to Russia in order to build a major real estate holding in Moscow. He may have agreed, in the process, to run for President and, if successful, do certain things favorable to Moscow. In light of this past year's events, such things could include what we have seen happen a gutted State Department, halted enforcement of economic sanctions, and Russia given a free hand in the Middle East. Yet Dershowitz blithely ignores the mountain of evidence on this front, and simply concludes that "politically tinged investigations" are always a bad thing.
If it is incontrovertible that Trump committed treason, and is repaying the debt he now owes a foreign power for its active assistance in winning the Presidency, by taking actions that are directly contrary to America's national interest, then it is hard to see how anything less than impeachment could and should be in order. But if we accept the notion that this still cannot yet be known for certain at this time, even with all the detail that has spewed forth showing the vast extent of Trump's illicit ties to Russia going back at least ten years, and his bald-faced lies that such ties do not exist, we must proceed to the third and final constitutional reason why an investigation that extends to his conduct while in office must continue.
3. Constitutionally, if Trump used fraud and treason to win the election, any actions he took afterward that may reflect this must be subject to scrutiny.
Again, Dershowitz's position is that criminal law cannot be applied to political action in an "elastic" way, or we risk the "over-criminalization" of American politics. He notes that while this tendency is nothing new, its negative effects on our system of government have been demonstrated time and again. Among other examples, he points to the imprisonment of political opponents by President (John) Adams, and the use of prosecutorial force by President Jefferson, as early examples of this unfortunate tendency. But a fundamental difference exists between these precedents and the current situation, arising from the issue of legitimacy. Moreover, the very fact that Dershowitz is essentially using these precedents to argue that it would be bad for Trump to be held to account, presumably because even the finest office holders may do such things to some extent, buttresses, rather than diminishes, the importance of an investigation to the fullest possible extent, into the territory of how it has affected Trump's actions while in office.
Let's dive deeper into the story of these two earlier presidents to better understand why. Jefferson ordered James Madison, his Secretary of State, to prevent William Marbury from taking office as a justice of the peace because Marbury was a political opponent. This led to a lawsuit,resulting in the groundbreaking decision of Marbury vs. Madison, which established that political action is susceptible to judicial review on constitutional grounds. As for Adams, he imprisoned journalists under the Alien and Sedition Acts of 1798, but his actions in doing so were so controversial that they played a role in his losing his bid for re-election in 1800, leading to a 24-year period during which the rival Democrat-Republican party controlled the White House. In both of these cases, legitimately elected officials were held accountable: one, through court opinion (in theory) in Jefferson's case; the other, through the ballot box (in practice) in Adams' case. The fact that they overstepped the authority of their office was addressed to the extent it could be, and America was better for it.
Unlike Adams or Jefferson, suppose a political figure commits unlawful acts in order to win the Presidency, not just abuse the powers of the office upon gaining it. In such a case, how do we examine whether this truly happened unless we can investigate it as fully and as widely as required? If you win the Presidency through "cabal, intrigue, and corruption" and by aligning yourself with a "foreign power" seeking "to gain an improper ascendant in our councils," Congress, and any lawfully-appointed independent prosecutor, must protect the functioning of the government from your treason by taking whatever constitutional steps are necessary, including impeachment, to reverse this unfortunate result.
Conclusion: Investigating whether the Presidency was won through treason is not the same as investigating everyday criminal misconduct punishable by law.
Ultimately, whether the Trump Presidency is fundamentally illegitimate is a qualitatively different question than how and to what extent criminal laws should be applied in political affairs. Rather, it opens a more timeless and grave issue: protecting the integrity of the state. In a much earlier, more severe, and less egalitarian democratic state - ancient Athens, which remained proudly independent until the years leading up to it being reduced to a province within the empire of Phillip of Macedonia - the orator Demosthenes had this to say about Phillip's attempts to reassure Athenians that this was a positive development in the history of their city:
There is one common bulwark with which men of prudence are naturally provided, the guard and security of all people, particularly of free states, against the assaults of tyrants. What is this? Distrust. Of this be mindful: to this adhere: preserve this carefully, and no calamity can affect you.
Such a comment holds equally true for people like Dershowitz might say otherwise about considering the motives of a public figure in exercising "constitutional powers" protected from scrutiny today. Americans must be able to call into question whether a person became President in order to use the office for personal purposes, rather than our national interests. In that case, our system of government gives us not only the ability, but the imperative to investigate whether such a person should be removed from office for the commission of "Treason, Bribery, or other high Crimes and Misdemeanors."
Dershowitz thus, in effect "gaslights" America when he conflates inquiry into criminal acts against person or property with treasonous action against the state. While an investigation into such acts requires a sense of distrust, and may thus corrode the sense of trust people would otherwise have in government affairs, to allow it to complete its course if undertaken in good faith affords us the only hope of correcting a fundamental breach caused by the actions of an individual whose conduct directly and deliberately disrupts our governmental processes and public affairs.