Alan Dershowitz and the imperial presidency: A civil libertarian defends unlimited power

Eminent Harvard Law professor claims he's being shunned on Martha's Vineyard. New York Times responds with alarm

By Heather Digby Parton


Published July 9, 2018 8:35AM (EDT)

Alan Dershowitz (Getty/John Lamparski)
Alan Dershowitz (Getty/John Lamparski)

If you made the wise decision to stay off the internet over the July 4 break, you may not have heard about the saga of Harvard Law professor Alan Dershowitz and the supposed social ostracism during his vacation in Martha's Vineyard this summer. Evidently, some people with whom he usually associates find his defenses of Donald Trump to be off-putting, and they don't want to invite him to their parties.

Dershowitz had complained about being persona non grata last summer too but this year decided to write an op-ed in the Hill about it, calling it a form of McCarthyism. This prompted the publishing of three prominent New York Times articles and a review of his new book (arguing against the impeachment of Donald Trump), which recapitulated the ongoing soap opera as well. Since a central hallmark of the Trump era is famous people whining in public about being treated unfairly, this is only notable for the fact that the media seems to be obsessed with the story. Also, the man is selling a book. (Dershowitz is scheduled to visit "Salon Talks" on Monday for a conversation with Andrew O'Hehir and D. Watkins.)

Nonetheless, there are some good reasons to take a closer look at why some former friends might be angry with Dershowitz. Despite his claims of oppression, one would think that the self-described champion of civil liberties would respect the concept of freedom of association, which is generally considered to be the natural right of people to gather together and "collectively express, promote, pursue, and defend their collective or shared ideas." These people on Martha's Vineyard don't want to socialize with someone who claims that Donald Trump has unlimited power over the Department of Justice and is personally above the law. It's called shunning, and it is a very old tradition.

Dershowitz explains his position on Trump as a matter of principle, but like any good lawyer (and he is among the best) he summons various arguments, depending on the situation, to buttress his case. For instance, when he's defending Trump against charges of collusion, he often claims that he's unbiased by suggesting that while Hillary Clinton "colluded" with the DNC to unfairly rig the Democratic primary, he doesn't believe she committed a crime either. The Fox News audience undoubtedly appreciates the cunning of that argument, but a troll is a troll and everyone knows it when they see it.

Whether he's saying that Trump can't be held responsible for collusion because no such specific statute exists, that a president cannot obstruct justice because he has the power to hire and fire any federal employee at will or that the pardon power could legally be used to cover up a murder, the sum of his arguments leads to the obvious conclusion that Dershowitz believes the president of the United States has imperial powers.

I take him at his word that he believes this about all presidents. But the liberal intelligentsia with whom he likes to pal around can be forgiven for finding his full-throated defense of the unfettered power of the presidency rather alarming when it's on behalf of a man who openly threatens the rule of law, the judiciary, political opposition, immigrants, Muslims, African-Americans -- actually anyone who opposes him.

Perhaps they didn't see the danger in their friend's academic arguments before, but seeing him make one like this specifically on behalf of Donald Trump may have focused their minds:

I'm not a lawyer, so I won't make any legal or constitutional arguments against Dershowitz's position. Others have made them very thoroughly. But as a citizen who believes strongly in civil liberties, I can say that I find his argument defies common sense. If the president is exempt from the laws of the land simply because he is at the top of the organizational chart of the Department of Justice, then our entire understanding of our founding principles are a joke.

But then, this isn't the first time I've found Dershowitz's arguments to be too clever by half. After 9/11 a lot of people lost their ethical moorings, and the government itself decided that it needed to abrogate the taboo against torture, so lawyers at the Department of Justice cooked up a secret opinion to legalize it. We know what happened after that.

Dershowitz was upfront about his defense of torture but separated himself from the acts perpetrated by the Bush administration by arguing that what really matters is the process by which it should be done. He agreed that the practice was immoral, but since it might be necessary in a "ticking bomb" scenario (in which he claimed the suspect is "not likely to provide information unless we use certain extreme measures"), we should devise a bureaucratic system where top levels of the government sign off and no one is hypocritical about it, which he seemed to think was the fundamental issue.

The central principle involved in that argument was that it's important to have legal procedures in place to protect government officials when they perform immoral acts. Dershowitz stuck to the argument even in the face of a massive amount of evidence that torture doesn't work, insisting that since people will do it no matter what, it was necessary to have a legal method of carrying it out.

In another example, in the wake of the Freddie Gray case in Baltimore, Dershowitz told Fox News:

Black Lives Matter is endangering the fairness of our legal system. Because they're rooting for outcomes based on race.

First, that simply isn't true. They're rooting for outcomes based upon justice for young, unarmed black people who are shot dead by police. The words "unarmed" and "shot dead" should be enough to give any civil libertarian pause, and the fact that so many of the victims are young black men indicts the system on a whole other level. Apparently Dershowitz thinks that America is more threatened by Black Lives Matter not trusting the outcomes of the judicial system. Where does he suppose such mistrust might have come from?

If you feel that Dershowitz might be missing the forest for the trees in these arguments, you aren't alone. He advocates for a position, but the position only makes sense in an abstract academic debate. In the real world, he is advocating for torture, condemning activists for protesting the rampant killing of young unarmed black men and arguing that the presidency is an office of unfettered power.

There's a lot more of this stuff, cloaked in the mantle of civil liberties, that makes less and less sense the closer you look at it. Defending Donald Trump is another example of a civil liberties philosophy devoid of morality or sound judgement.

The good news for Dershowitz is that there is one very important person who loves to spend time with him:

Alan Dershowitz arrived at the White House this week expecting to discuss the Middle East. Before long, the president had invited him to an intimate dinner of a ravioli appetizer, guinea hen entree, and, for dessert, fruit compote.

One hopes he remembered to let Trump have two scoops.

Today's hottest topics

Check out the latest stories and most recent guests on SalonTV.

By Heather Digby Parton

Heather Digby Parton, also known as "Digby," is a contributing writer to Salon. She was the winner of the 2014 Hillman Prize for Opinion and Analysis Journalism.

MORE FROM Heather Digby Parton