Law & the Courts

Since When Is It Wrong to Be Alan Dershowitz?

Anyone who’s followed the career of Alan Dershowitz knows three things about him. First, he’s a civil libertarian. Second, he’s a defense lawyer to his very core. Third, he’s fearless — the higher profile and more unpopular the case, the more he’s willing to ride into legal battle. His work for the thoroughly unsympathetic Claus von Bülow inspired an award-winning movie. He was part of the defense team of an even less-sympathetic O.J. Simpson. He’s made legal arguments against prosecutorial overreach his entire life.

So is it any surprise that he’s applying the same principles to Donald Trump? The Washington Examiner has a short piece discussing the price Dershowitz has paid for making the same arguments he’s always made — this time in opposition to the various legal theories that Trump is guilty of obstruction of justice. In short, his friends and family are begging him for “selective silence.”

My really, really close friends say, ‘You’re 100 percent right in your analysis, but can’t you just shut the f—k up and not talk at all,’” he said. “They tell me, ‘This is a time for selective silence.’ My nephew thinks I’m helping keep in office one of the greatest dangers in American history. I tell him I’m just standing up for principle. He tells me that I don’t have to stand up so loud.”

Dershowitz added that his family is no longer proud to be associated with him.

“I was a source of pride to my kids, my grandkids,” he said. “Now it’s ‘Oy, he’s related to Alan Dershowitz.’ That hurts me a little bit.”

This is poisonous. I don’t agree with all of Dershowitz’s arguments, but the proper method for addressing those arguments is to rebut them, not to punish him and try to silence him simply because this time (and not when he’s representing a double murderer) the accused is too terrible for a public defense — even when that public defense is grounded in solid and defensible interpretations of criminal and constitutional law. 

I can’t claim to know Dershowitz well, but we’ve corresponded off an on since I was a student in his ethics class in 1993. He’s been a consistent defender of academic freedom, and we worked together on occasion when I was president of the Foundation for Individual Rights in Education (FIRE). I feel confident that he finds any number of Trump policies repugnant (and he may also find Trump’s character repugnant), but arguing that he should keep silent is to argue that the defense of civil liberties is contingent on the identity of the suspect and his or her popularity with the chattering classes. 

Public controversies are teaching moments, and the more public the controversy the greater the need for informed discussion. There are few defense attorneys and civil libertarians better prepared to make their case than Alan Dershowitz. Hear him out. If you find yourself ill-equipped to rebut his arguments, rather than attempt to shame and silence him consider another alternative. He just might be right. 

David French — David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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