Alan Dershowitz’s Worries About the Russia Investigation and the Criminalization of Politics

Worried about a “criminalized politics,” Alan Dershowitz argues that “malleable” laws should be reserved for proper and not blatantly political uses. He fears that partisans are failing to observe restraint and that the Russia investigation is one notable result. He doubts the merits of allegations of obstruction of justice and “collusion” with a foreign government (though he is quick to point out that he is a Democrat, a Donald Trump critic and that he is making his case on general principle). He argues that the “ethically questionable” is “not necessarily criminal.”

It is hard to argue with the general point here: Citizens, including their leaders, who are engaged in political action should not fear prosecution for the exercise of their First Amendment rights. There is indeed always a danger of a criminalized politics. Dershowitz analysis then looks in the wrong direction. The example he selects—the travails of Trump and his 2016 campaign—seems a questionable choice for his purposes.

However the Russia investigation issues are resolved—and the president’s lawyers seem confident about a favorable outcome—they do not arise from dubious applications of the law. They have a gravity that outweighs any reasonable concern with a “criminalized politics.” That these statutes may be “elastic,” “malleable,” or “flexible” in some other contexts has little bearing on their application to this case.

In the case of potential obstruction, the president fired an FBI director overseeing an investigation that directly affected him—and then acknowledged (to NBC) this motivation, which was not the one his administration first provided. Perhaps this episode will conclude with the judgment that—should the facts bear out the claim—a president intervening in the criminal enforcement for his own benefit, or that of political associates or family members, presents only a question of norms, not of law. Some may argue that redress in such a case is available only through the impeachment process. The question of potential obstruction, however, is undoubtedly a serious one—not an obvious example of the criminalization of politics.

To the contrary, this is a clarifying moment, when we will see 43 years after United States v. Nixon what steps a president might be able to take, on a claim of executive authority, to insulate himself from potential criminal liability. Alan Dershowitz holds the view, apparently, that the president cannot obstruct justice by firing the FBI director, whatever the reason, because he commands the criminal enforcement apparatus. An investigation that establishes those reasons will frame the question and necessarily influence how far the courts will take the theory that Professor Dershowitz espouses. One way or the other, resolving the application of the obstruction of justice statute to the president’s conduct is a matter of deep constitutional significance and will have long-term effects. It belittles the import of the matter to put it in the category of “criminalized politics.”

In fact, if one is troubled by the partisan misuse of law for political ends, then it seems that presidential intrusion into criminal enforcement would be close to the top of the list of concerns. The president made a show during the campaign of threatening, if elected, to direct a prosecution of his opponent. And he has kept up this line of attack, as have some of his allies in the Congress. Dershowitz lumps this behavior in with the matters under review by the special counsel, which is truly peculiar.

Dershowitz also questions the “collusion” controversy: the question of whether the Trump campaign solicited support from or coordinated campaign activities with a supportive foreign government. He states flatly that “even if it were to turn out that the Trump campaign collaborated, colluded or cooperated with Russian agents, that alone would not be a crime, unless the campaign asked them or helped them to commit criminal acts such as hacking.”

Not so. An American presidential campaign that solicits and receives the active support of a foreign government has put itself squarely within the reach of the prohibition on foreign-national spending in our elections. There are legal issues to be sorted out, all dependent on the facts, such as whether the campaign rendered “substantial assistance” to the foreign national’s campaign spending scheme, or, by an act of “coordination,” received an illegal contribution.

Some facts are known, and the law need not be—in Dershowitz’s words—“stretched” to appreciate how it might apply here. There can be little doubt about the relevance of the senior Trump campaign staff meeting in the summer of 2016 with a traveling party from Moscow that came with a direct expression of support from the Russian government and an offer of derogatory information about Hillary Clinton. The more recent revelations about the private correspondence between the president’s son and WikiLeaks adds to a picture of a campaign whose interactions with Russia and its agents, in this instance and others, present clear questions under the foreign-national electioneering ban.

Nothing in the raising of these questions requires reliance on what Dershowitz terms “an overly flexible, easily expanded criminal statute.” The law prohibits foreign-national spending to influence a presidential election. Russia favored one candidate and devoted resources to to electing him. The candidate’s campaign was aware of the support, encouraged and welcomed it, and—on the facts revealed to date—assisted in disseminating the fruits of the scheme and in enhancing its effectiveness. What, exactly, is the “stretch” here?

By the analysis Professor Dershowitz advances, this issue, like the question of obstruction, would be unfit for investigation. But not only partisans would be concerned or believe that an investigation is in order. The Republicans in 1996 thought that alleged foreign intervention in the presidential election merited a vigorous investigation, and many congressional Republicans today agree in principle that it is appropriate to get to the bottom of any connection between Russia and the Trump campaign in 2016. The special counsel may or may not find evidence of criminal activity, but Mr. Mueller’s examination of this issue hardly is a case of “criminalized” politics.

Is there such a thing as “criminalized politics,” if it is not found in the examples uppermost in Alan Dershowitz’s mind? There is, to be sure, but we need a more rigorous definition. It is not enough that some partisans may be motivated to pursue a legal claim in part to achieve political goal. After all, if there is a violation of law to be investigated and charges to be brought, the motivation is largely beside the point. And some partisans may be moved by political considerations and convinced, perhaps even appalled, by the conduct they believe should be investigated. Nor does the outsized impact of the political effects of an investigation convert a legal charge into one that is overly politicized. The question is the merits of the claim, politics be damned.

Dershowitz is not wrong to be concerned about the misuse of the laws for political ends. And it is not only the “malleable” or “elastic” criminal law per se that could justify the concern. The post-Watergate political reforms in particular figure prominently in any account of “scandal” politics grounded in legal charges. Criminalized politics spring most predictably from laws about politics. Both parties have cause to complain about abuse by the other of these laws and rules in order to settle political scores and advance political aims. In an era of deep distrust of institutions and politicians, the pressures to exchange legal charges and countercharges to score political points are predictably intense. Moreover, as the laws expand and their complexity increases, so do the opportunities for the “grey areas” that encourage legal attacks.

So Alan Dershowitz may have an entirely reasonable concern in the abstract about the criminalization of political differences, but he then takes it in the wrong direction. The special counsel and the Congress are examining questions of extraordinary and lasting importance, not the more standard, if regrettable, examples of nasty partisan feuding over spurious claims of law-breaking. If there is evidence that a presidential campaign established a political alliance with a foreign power, and the successful candidate upon achieving office then obstructs an inquiry into the facts of that relationship, it is a strange indeed to suggest that an investigation is somehow an abuse of law and the legal process.

It is a not a criminalization of politics to investigate serious allegations of criminality in politics.