Alan Dershowitz is hardly someone in need of the defense of others. However, there is a disturbing level of acrimony and personal attacks directed at the retired Harvard professor after he agreed to speak in defense of President Donald Trump. As I tweeted last night, I have strong disagreements with Dershowitz over his theory that impeachment articles must be based on criminal acts. However, I thought his presentation last night was outstanding. It was powerfully presented and he made some compelling points. While we disagree, it is a presentation that everyone should have watched. The shame is that few people are watching and even fewer are listening. To make matters worse, liberals (who pride themselves on supporting individual rights) are attacking Dershowitz for defending unpopular individuals like O.J. Simpson and Jeffrey Epstein. That is what criminal defense attorneys do. They represent accused and often highly unpopular individuals. It is the rankest form of attack to suggest that a lawyer defending a client is somehow tainted by the crimes alleged in the case.
I have previously discussed my disagreement with Dershowitz’s theory, including what I believe is a misreading of the trial of Andrew Johnson and defense of Justice Benjamin Curtis. This however is a good-faith academic dispute. Dershowitz put on a marvelous defense of his view last night.
Indeed, as a Madisonian scholar, my only objection was when Hamilton’s picture was used for Madison. The image appears to be Alexander Hamilton by John Trumbull from 1792. It was an ironic moment since Dershowitz was objecting that commentators are blurring the views of the Framers. But I digress.
I still believe that he is wrong on a number of points from the meaning of “high misdemeanors” in England to “common law” of impeachment. Where we agree (and I testified earlier to this point) is that basing an impeachment solely on a non-criminal abuse of power is the most difficult and problematic courses for the House. I also agree that such an allegation invites subjective and abusive theories.
However, what concerns me most about the commentary is the ad hominem attacks on Dershowitz. Commentators attack him for taking famous, high-profile cases and portray him as only motivated by the press. They do not make the same objections to liberal professors and commentators who routinely take such cases and make media appearances from Laurence Tribe to Neil Katyal to Noah Feldman. They agree with their opinions so their motivations are not questioned. The fact is that none of their motivations should be questioned. They are all insightful and influential thinkers.
I fail to understand why defenses in cases like OJ Simpson or Von Below is an indictment of Dershowitz as an attorney. He is an unabashed and iconic defense attorney. He has earned respect for his advocacy on behalf of some of the most despised individuals. We have had our strong disagreements. However, I still respect his career and his intellect.
Rather than “ineffective,” Dershowitz’s argument laid out the best possible case for a highly challengeable theory. He showed that there is a defensive basis for theory and last night certainly showed the Dershowitz has not diminished in his skills or intellectual prowess. I would not obviously have made this theory the center of the Trump defense. However, if the President wanted to make such a case, Dershowitz gave him the best possible presentation of its merits. Again, Alan Dershowitz needs no defense, but he deserves a modicum of respect for erudite and elegant argument.