Alan Dershowitz: Trump foes seek to take away his legal rights -- endangering everyone's rights

Many traditional civil libertarians have allowed their intense hatred of President Trump to erase their longstanding commitment to neutral civil liberties and equal justice for all – a dangerous move that threatens the rights of us all.

Continue Reading Below

The anti-Trump forces are now so desperate to get the president convicted of a crime or impeached that they are prepared to compromise the most basic due process rights of the president and people associated with him who are caught up in Special Counsel Robert Mueller’s ever-widening Russia probe and a related investigation of the president’s personal attorney, Michael Cohen.

The Trump opponents forget an important lesson of history: compromises that weaken the legal protections of our enemies are often used as precedents to weaken the legal protections of our friends – or of ourselves. Some of President Trump’s most vocal opponents might themselves be harmed in the future by the erosion of legal protections they are advocating for the president and his associates today.  

Too often, today’s fair weather civil libertarians are unwilling to give President Trump – who they regard as the devil – the same legal rights that all Americans are entitled to.

Consider the issue of criticizing Mueller. Trump opponents view any criticism or even skepticism regarding Mueller’s past conduct as illegitimate – grounded not in fact, but simply motivated by a desire to help the president stave off allegations of collusion with the Russians to win election and allegations of obstruction of justice.

But no one – including Mueller – has the right to immunity from criticism or examination of his or her past record.

Continue Reading Below

Mueller has a long record. He was an assistant U.S. attorney in Boston and the head of that office’s criminal division. He was later the head of the criminal division for the Justice Department and director of the FBI. His tenure in law enforcement paralleled the most scandalous miscarriage of justice in the modern history of the Boston FBI.

While Mueller was in positions of responsibility, four innocent people were framed by the FBI in order to protect mass-murdering gangsters who were working as FBI informers while they were killing innocent people. An FBI agent who is now in prison was tipping off organized crime boss Whitey Bulger as to who might testify against him, so that these individuals could be killed. The FBI agent also tipped off Bulger about his impending arrest, allowing him to escape and remain on the lam for 16 years.

What responsibility, if any, did Robert Mueller – who was in key positions of authority and capable of preventing these horrible miscarriages of justice – have in this sordid incident? Only a thorough and objective investigation will uncover the truth.

A former member of the Massachusetts Parole Board – a liberal Democrat who also served as mayor of Springfield, Massachusetts – swears that he saw a letter from Mueller urging the denial of release for at least one of these wrongfully convicted defendants. When he went back to retrieve the letter, it was not in the file, he says.

I see no reason to doubt his credibility.

This vanishing letter – if it existed – should surprise no one, since Judge Mark Wolf (himself a former prosecutor), who conducted extensive hearings about this entire mess, found there had been “recurring irregularities” in FBI record-keeping conduct involving Bulger, including possible “FBI misconduct.” And the judge made a finding that directly references Mueller’s state of knowledge regarding the “history.”

It is therefore not beyond the realm of possibility that Mueller wrote a letter to the Parole Board that kept one or more innocent men in prison – even if such a letter is no longer in the files. If Mueller wrote such a letter without thoroughly investigating the circumstances, he surely bears some responsibility.

Moreover, it is widely believed among Boston law enforcement observers that the FBI was not really looking for Whitey Bulger during the years that Mueller was its director. It is believed that the FBI was fearful about what Bulger would disclose about his relationship with FBI agents and other law enforcement officers over the years. It took a member of the U.S. Marshals Service to find Bulger, who was hiding in plain view in Santa Monica, California.

Recently a former federal judge, who used to be a civil libertarian, rushed to Mueller’s defense, declaring “without equivocation” that Mueller “had no involvement” in the massive miscarriage of justice. Her evidence is the lack of evidence in the files.

But absence of evidence is not conclusive evidence of absence, especially in this case.

No civil libertarians should place such great trust in government files, especially in light of Judge Wolf’s findings. They should join my call for an objective investigation by the inspector general of the Justice Department before they assure the public “without equivocation” that Mueller had absolutely “no involvement.”

But these “Get Trump At Any Cost” partisans have rejected my call for an investigation, out of fear that it may turn up information that might tarnish the image of the Muller and weaken his investigation of President Trump. Instead, they criticize those of us who point out that Mueller was at the center of the Justice Department and FBI, while this miscarriage of justice involving the four wrongfully convicted men occurred.

All civil libertarians should want the truth about this sordid episode – and Mueller’s possible role in it – regardless of its impact, if any, on the Trump investigation. Mueller also should welcome an objective investigation, which might eliminate any doubt about his role in this travesty. But too many former civil libertarians are prepared to sacrifice civil liberties and the quest for truth on the altar of “Get Trump.”

This is all too typical of the about-face many civil libertarians have taken since Donald Trump became president. I have previously written about the ACLU’s abdication of its traditional role in challenging governmental overreaching. For the new ACLU, getting Trump trumps civil liberties.

It is ironic to see many right-wingers being the ones to criticize overreach by law enforcement, while many left-wingers now defend such overreaching. Hypocrisy and selective outrage abound, as neutral principles take a back seat.

Conservatives used to say that “a conservative is a liberal who has been mugged.” I would respond that “a liberal is a conservative who is being audited or whose kid was busted for pot.” Today a civil libertarian is a conservative whose candidate is being investigated, while a law-and-order type is a liberal who wants to see President Trump charged with a crime or impeached.

I am a liberal who did not vote for Trump, but who insists that the president’s civil liberties must be respected to protect the civil liberties of us all. Just as the first casualty of war is truth, so, too, the first casualty of hyper-partisan politics is civil liberties.