As DOJ comes under fire for perceived strong-arm tactics against Trump supporters, famed Harvard law professor warns current search for criminal charges to pin on Trump could create “dangerous” precedent.
Dershowitz, professor emeritus at Harvard Law School, cited examples of prominent legal experts taking wild swings at Trump — everything from saying he attempted to murder former Vice President Mike Pence to saying he’s guilty of dereliction of duty — to argue he should be charged with a crime for his actions during the Jan. 6 Capitol breach and more broadly his efforts to challenge the results of the 2020 presidential election.
“What all these arguments have in common is they stretch the law however it needs to be stretched in order to get Trump,” said Dershowitz, who said prosecution not grounded in the law sets a “dangerous” precedent. “Today they’re targeting Trump. Tomorrow it could be Black Lives Matter, or union organizers, or even a progressive president when the roles are flipped.”
Dershowitz’s comments came a few days after the Washington Post reported the Justice Department is investigating Trump’s actions as part of its criminal probe into the storming of the Capitol and efforts to challenge the 2020 election results.
The report was published after Andrew Weissmann, one of the lead prosecutors in the Trump-Russia investigation, criticized the Justice Department for adopting a “bottom-up” criminal investigation by focusing primarily on Jan. 6 protesters rather than Trump and his top allies.
The Justice Department has arrested nearly 900 people for charges related to Jan. 6, imprisoning most without a trial. Several have said the FBI, Justice Department, and federal prison officials under the Biden administration violated their civil and constitutional rights. The vast majority weren’t accused of carrying a weapon, assaulting law enforcement, or destroying property. Many didn’t even enter the Capitol building.
The House select committee investigating Jan. 6 just finished a series of hearings over the summer aimed at portraying Trump as the central figure in an orchestrated plot to overturn the 2020 election and incite an insurrection.
In a departure from House norms, House Speaker Nancy Pelosi (D-Calif.) last year rejected two of the five House Republican picks for the committee, prompting Republican Minority Leader Kevin McCarthy (R-Calif.) to pull all five of his party’s choices from the panel. Pelosi then handpicked two anti-Trump Republicans to join the seven Democrats on the committee.
The panel is currently considering whether to refer Trump to the Justice Department for criminal prosecution.
But even if the committee does make the referral, the Justice Department will disregard any conclusions reached by the committee, according to Dershowitz.
“The Justice Department will totally ignore any conclusions reached by the House committee,” he said. “There was no cross examination … It was a corrupt process for eliciting evidence. Never before have we seen a hearing like this where the other side was excluded and we only got a one-sided story.”
Dershowitz added that Attorney General Merrick Garland won’t ignore the actual evidence produced by the committee but will only indict with a “slam-dunk case and a smoking gun that would be accepted by the vast majority of Americans,” as was the case with Richard Nixon.
With Trump, however, there’s currently “no gun, not even a knife, just circumstantial inferences,” said Dershowitz, who noted attempts by Democrats to omit the fact that Trump said in his speech to supporters on the day of the Capitol riot that they should protest “peacefully” and “patriotically.”
Concerning other accusations leveled against Trump, Dershowitz said they would need to be proven beyond a reasonable doubt to result in a successful prosecution — a threshold he characterized as out of reach given the current evidence available.
Dershowitz made a point of distinguishing between criminal activity and actions people may find distasteful but aren’t crimes. To prove the point, he cited allegations that Trump stood by idly on Jan. 6 and refused to call the National Guard to stop the riot — a claim that Just the News has refuted through extensive reporting in recent months.
“Let’s just take the worst-case scenario and say Trump refused to call in the National Guard and watched the chaos unfold,” said Dershowitz. “It wouldn’t be a crime. It could be dereliction of duty or any range of sins,” but not deserving of criminal charges.
“No crime is obvious here,” said Dershowitz of Trump’s conduct following the 2020 election. “This is just dirty politics, which has been part of the scene since Thomas Jefferson.”
Dershowitz emphasized he’s a man of the political left and would never vote for Trump in 2024 should he run but is bound by the law.
The situation would “change dramatically if there was evidence of tax evasion or a crime like that, but punishment for a political crime should be the American people voting you out of office,” he added. “I don’t want to be denied my right to vote against Trump in 2024.”
The longtime Harvard professor explained that the last time “politics overtook law” was McCarthyism in the 1950s, when people were afraid to call out investigative misconduct out of fear of being branded a communist.
“Today, people are afraid of being branded a Trump supporter,” he said. “Were Trump indicted, it would get much worse.”
Dershowitz compared the current situation to the late Attorney General Robert Kennedy repeatedly trying to prosecute Roy Cohn, with whom he had a decades-long feud. Cohn, a central figure in the McCarthy hearings of the 1950s, was acquitted three times after three separate criminal indictments by the Kennedy Justice Department.
Concern over politics trumping the law in the potential prosecution of Trump comes amid growing outcry among legal experts against perceived Justice Department strong-arm tactics targeting skeptics of the 2020 presidential election outcome and other critics of the Biden administration.
Former Trump White House trade official Peter Navarro, for example, was publicly arrested by FBI agents at Reagan National Airport just outside Washington, D.C. last month on misdemeanor charges that he acted in contempt of Congress by defying a subpoena from the Jan. 6 committee.
According to Navarro, federal agents put him in handcuffs, leg irons, strip-searched him, denied him a chance to call his lawyer, and deprived him of food and water. The Justice Department has said those claims are false.
At a recent hearing in Navarro’s case, the overseeing federal judge agreed federal agents used unnecessary force against Navarro, saying it was baffling that prosecutors didn’t simply tell Navarro he was going to be charged and let him walk into an FBI office.
“Law enforcement seems to be using arrest tactics on Trump supporters that are generally reserved for violent and/or fleeing suspects,” Dershowitz told Just the News earlier this month. “They do not seem justified in many of these cases.”