Alan Dershowitz has become a shill for Donald J. Trump; he seems never to have met a legal argument against Trump’s criminality that he wasn’t eager to reframe as partisan hysteria.
Were a law student to mimic Dershowitz’s latest outburst — or what he seems to think passes for legal analysis — on an exam, the result wouldn’t be zero points, but negative points. Here, Dershowitz is defending not Senior, but Junior, explaining that Junior’s meeting with Russian agents to collude in influencing an American election wasn’t just legal, but constitutionally protected. Dershowitz said what he said on Fox News, and it was then cited favorably by Breitbart.com. I might stop right there, but it gets much worse. Here’s a blurb from Breitbart:
“If [Trump Junior’s conduct] were to be prosecuted, the First Amendment would trump. A candidate has the right to get information from whatever source the information comes,” [Dershowitz] argued.
Dershowitz also pointed out, “If the material was obtained unlawfully, you prosecute, if you can, the people who obtain the material. But there is a First Amendment right of a candidate to use information. You can’t include information under the campaign finance law. That would be unconstitutional.”
Did you catch that? A person associated with a campaign has a “right to get information.” But there’s a big problem for the “people who obtain the material.” It may be illegal to obtain material for use by a candidate against his or her opponent, but it’s okay for a campaign to get material to use against a political opponent. There’s no First-Amendment right to obtain it; but there is a First-Amendment right to get it. See any problems with that argument? Maybe this visual will help:
Dershowitz’s argument is rather like what the knowing recipient of stolen property might say after intentionally, er, coming into possession of the property: “Don’t blame me! I just got the property! I didn’t obtain it!”
If there are Supreme Court cases announcing a “political-candidate exception” to any law against obtaining — or getting — information that it is a crime to possess, I must have missed it during my 15 years teaching law. Maybe that’s why Dershowitz undertook a clever sleight of hand later in his quote by switching in use for get: “[T]here is a First Amendment right of a candidate to use information.”
The issue in the case of Trump Junior, of course, is not whether he had a right to use information, but whether he had a right to attempt to get or obtain it. One federal statute (an election-law statute) that is relevant to the case criminalizes the solicitation or receipt — not use — of anything of value from a foreign entity. Solicitation means trying to get, and receipt means getting. So at least as to this election-law statute, Dershowitz’s musings about use are of no moment; that’s not what the law targets or prohibits. The same goes for other potential charges, like attempt and conspiracy, which don’t require that an illegal enterprise succeed before becoming criminal.
But even of we focus only on using (rather than getting) ill-gotten material or information, where are we to find the constitutional right of which Dershowitz speaks? The First Amendment, in its entirety, says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Where’s the part about a political candidate getting or using illegally obtained material?
In the video statement available at the Breitbart site, Dershowitz indulges a breathtaking conflation; he suggests that because the government should not prosecute a newspaper for obtaining ill-gotten information, it should also not prosecute a campaign for doing so. It is common for lawyers to argue — and rightly so — that prosecutors should not target the free press for getting or obtaining information that is useful to the public, no matter where it comes from. But the press, unlike a political campaign, is expressly empowered to do what it does by the Constitution of the United States. That means that the government is expressly forbidden from criminalizing what the press does. There is no analogous protection for political hacks engaged in opposition research.
Quite obviously, the free press serves an entirely different purpose than a political campaign; the former exists to inform and enlighten (we’re not debating here whether it succeeds in that noble undertaking), while the latter exists to exult one character and destroy another. Those differences go a long way to explaining why the former gets a shout-out in our founding charter while the latter does not. (I’m not saying here that a political hack doesn’t have a right to speak; I’m saying that a political hack does not enjoy those rights inhering in freedom of the press.)
As to the press, it is widely believed that the government should not even prosecute a media outlet for possessing (or publishing) highly classified information. In Dershowitz’s view, should a political candidate or campaign enjoy similar immunity?
Regardless of Dershowitz’s mangled understanding of First-Amendment doctrine, I can confidently tell you that a federal judge’s answer would be, “No — that’s preposterous.” Courts routinely decline to hold that speech – or the exchange of information – is constitutionally protected when its expressive value is grossly outweighed by its attendant harm. Private parties whose purpose is to corrupt rather than facilitate the public discourse around political campaigns have no interest in possessing or using illegally obtained information that outweighs the harm associated with obtaining or using that information.
Maybe by distinguishing between obtaining and getting information, Dershowitz meant to suggest some kind of chain-of-custody cleansing — the idea that ill-gotten material might shed its ill-gotten nature if filtered through a strawman transaction, kind of like money laundering. Even if it’s illegal to obtain information in the first instance, this argument would go, getting it in the second instance is copacetic on a constitutional order of magnitude because, somewhere between the felonious intent of the obtaining party and the felonious intent of the getting party, the stench of illegality was somehow washed away.
Let’s test this proposition. Suppose that after September 11, 2001 and before the 2004 election, while we were fighting against the Taliban in Afghanistan, John Kerry had agreed to take a meeting with a Taliban emissary — a contact in the US with business and political ties to the Taliban in Afghanistan — to obtain (pardon me — get) information the Taliban had hacked from White House and Pentagon computers. Suppose also that Kerry intended to use the information to defeat George W. Bush, after which Kerry would assume office and implement more Taliban-friendly policies. In Dershowitz’s legal fever dream, this would not constitute treason (or any other crime) because, although the Taliban would have had no right to obtain the information, Kerry would have had a right to get it. In the world according to Dershowitz, a prosecution in such a case would have been “trumped” by the First Amendment.
Dershowitz might reply that my example isn’t fair, because we were in a hot (though undeclared) war against the Taliban whereas we are not presently in a hot war against Russia. First, that argument would ignore that the Russian hijacking of American democracy is far more an existential threat to the United States than anything the Taliban could ever have dreamed up. More importantly, it would ignore what Dershowitz, in apparent leave of his senses, actually said: “A candidate has the right to get information from whatever source the information comes.” If he didn’t mean such a gross and idiotic overstatement, he shouldn’t have mouthed it — especially not on Fox News, for crying out loud.
To illustrate Dershowitz’s legal claim is to lay waste to it. It’s beyond absurd. Dershowitz has surrendered his credibility in the service of a buffoon, and his shilling for the Trump clan will inure to his eternal shame.