My Harvard colleague, Alan Dershowitz, has been doing a good job of late championing the imperiled civil liberties of one Donald Trump. In frequent appearances on cable news, in a new book, and here on the Vineyard, Dershowitz warns his fellow liberal Democrats against weaponizing the law and impeachment remedies to incriminate a president simply because they are offended by his policies or personality. “You cannot stretch the law like an accordion for your ulterior purposes,” he says.
Fair enough. It is a good caution. Objections merely to an officeholder’s politics or personality should be settled in elections. Any of us can let our prejudices get in the way of fair judgment, so those of us who are, in fact, deeply offended by the president should check twice that we are not letting our prejudices rule our principles.
But hold on, Professor Dershowitz. By this same logic, is this not a warning you should be heeding, as well? Isn’t it possible you are stretching the mantle of civil libertarianism for your own ulterior purpose? It may surprise you if I quickly say I do not believe that ulterior purpose is to defend the person of Donald J. Trump. I take you at your word that Trump, himself, is not the real object of your attention.
But probably anyone’s most seductive ulterior purpose is to maintain their cherished identity, and yours, by your own admission, has been to be provocative — “from the day I was born,” you said at your Vineyard appearance. You literally wrote the book on chutzpah. You know yourself best as the courageous independent voice, the person standing in the public square, defending the most unpopular person or position. Such a person can be of great value in a law classroom, provoking young minds to critical thinking; or in a courtroom, providing even the despised with the defense they deserve.
And it is your right — and apparently your talent — to take the same stance in a public square as big as the nation itself. But I think you would agree that your position should be accorded no greater validity simply because it is a difficult, even courageous, position to take. It isn’t any more right for being unpopular. It should rise or fall on its merits alone, as should the views of those of us who believe the law or constitutional remedies may need to be applied to the president for reasons that go far beyond mere political differences.
Is it possible you are making a red-herring argument when you suggest many Democrats are being led by their prejudices, but you are not? Let me suggest a brief analogy. Imagine we are in a hospital emergency ward and two injured patients arrive at once. One of them has a sprained ankle; the other has a gunshot wound to his chest. Now let’s say, further, that the fellow with the sprained ankle contracted his injury during a posh ski trip, when he was helicoptered to the peak with his billionaire friends. Let us say the man with the gunshot wound is a 19-year-old inner-city black youth who has never caught a break. And now we see all the medical professionals in this understaffed emergency room rush to attend the patient with the gunshot wound.
Enter Professor Dershowitz. He accuses the doctors and nurses of violating their ethical duty to provide good medical treatment to all. “A billionaire has as much right to your sympathy and your care as anyone else,” he intones. “You are letting your personal preferences guide your behavior.” The medics reply, “The sprained ankle deserves our attention, and he will get it. But the GSW is going to die if we don’t attend to him immediately. Their bank accounts have nothing to do with it.”
Professor Dershowitz climbs onto a high horse when anyone accuses him of being a shill for the president. “I’m not defending Trump,” he says, “I’m defending civil liberties.” I have nothing against high horses. In fact, those of us disappointed in Professor Dershowitz feel we have one to ride as well: “I’m not trying to bend the law toward my political preferences; I’m concerned about the critical condition of our democratic republic.” If the body politic is in an emergency room, isn’t it time to think about triage? President Trump’s civil liberties should be protected. But, really, Professor Dershowitz, when you look out onto our country today, is this really the biggest threat you feel is most in need of the gifts of your extraordinary intelligence, your moral fervor, and your access to a national megaphone?
In pursuing his lifelong penchant for being provocative, is it possible Professor Dershowitz has confused two related but distinctly different roles? It is one thing to be a champion of civil liberties; it is another to play the devil’s advocate. Both roles are suitably controversial, and neither is without its merits. He should not pass one off as the other, but he has every right to play either — just as we have every right to keep in mind that the client of a devil’s advocate might one day be the devil himself.
Like Professor Dershowitz, Robert Kegan has served on the Harvard faculty more than 40 years, is a Jewish, lifelong, liberal Democrat, and spends the summer on Martha’s Vineyard.