Alan Dershowitz is leaving the Democratic Party. It was a long time in coming. The reason, he says, is because of the awful anti-Israel sentiment he saw during the DNC, but inside observers tell us that was likely a contrived excuse. Dershowitz was headed out the door long ago.
Fox News loves the guy. They adore parading him around every time he calls the Trump hush-money trial a "sham." Many in Trump-world believe, fervently, that Trump is innocent and was only found guilty because the D.A. and legal system of New York had it in for him.
Dershowitz is the primary reason why they have this stupid, stubborn belief.
He's also been a Right-Wing Media Cult favorite ever since he represented Trump in his first impeachment trial. Many observers wondered what the hell Dershowitz was doing. Many more were baffled at the questionable arguments he made. The move severely hurt his standing in the jurisprudence community. But he has piloted this new infamy into stardom within the Trumposphere, and he seems unperturbed by this.
As such, I thought it was time to do a deep-dive into the man, and his arguments, and then present some counterarguments.
Getting Dershowitz' viewpoint isn't difficult. He has a podcast ("The Dershow") in which he constantly rails against various injustices he sees within the system. The Trump hush-money trial is a favorite refrain of his. But then I tried getting the other side, looking for legal scholars who argued back Dershowitz' points, and presented a different perspective.
To my shock and horror, I found that there weren't any! Or if there were, they were being squelched by search-engine algorithms. On conservative media, Dershowitz is absolutely everywhere! But in more centrist and left-leaning media, people are pretending that Dershowitz simply doesn't exist.
I feel strongly that this is a severe tactical error! We're getting out-flanked by someone who was once considered one of Liberalism's greatest champions, and doing nothing about it except burying our heads in the sand! This is simply bone-headed. We need to deal with Dershowitz.
And, as usual, because nobody else is saying anything, I have to.
I'm no legal scholar. I'm an accountant, so I know something about finances, and I'm very close to a second degree in biology, so I know something about science. I've been a theologian for over 40 years, so I know something about religion. But I haven't dealt with anything legal since I took a course in business law back in 1999. So as I research Dershowitz' points, pitting myself against one of the greatest legal minds of our era, I'm really punching above my weight. I realize this. But again, nobody else is willing to step into the ring.
But I'm one hell of a quick-study. Watch this!
At the heart of Dershowitz' arguments is the fervent belief that even the lowest scumbag deserves a fair hearing in court. This has always been his position. To do this well, he concocts scenarios in which his client might be innocent, and then passionately defends this position as though it were entirely true. This makes him good at his job. But it also makes him credulous, in a way. Many of the devils this "Devil's Advocate" has defended in the past have been shady characters. But the system is supposed to work fairly, even for them, according to Dershowitz.
To that end, Dershowitz fervently believes that, had he been the defense attorney in the Trump hush money case, that he would have won. He might well be right. Despite his recent gaffs, he remains brilliant. But like many brilliant minds before him, he is very capable of outsmarting himself, and has done so rather spectacularly.
Dershowitz says that only two moments determine guilt or innocence in the Stormy Daniels hush-money case. The first is a meeting (Dershowitz calls it an "alleged meeting") in which Trump, Michael Cohen, and Trump's CFO Alan Weisselberg came up with the plan to pay the hush money to Stormy Daniels. These are the only three people who could testify to this event, as he tells it. And the crime isn't Trump paying the hush money. The crime is Trump passing these funds off as "legal expenses," paying them out of campaign funds under false pretext. (That's fraud.) Of the three, the only one who actually testified is Michael Cohen, who Dershowitz insists is lying. So, after dismissing Cohen's testimony, he asks, "Where's Alan Weisselberg?" He correctly surmises that the only side which could realistically call Weisselberg to the stand would be the prosecution, because if the defense did so, Weisselberg could simply plead the Fifth. But if the prosecution has him testify, they could do a plea deal. The fact that they couldn't get a plea deal indicates, to Dershowitz' thinking, that Weisselberg was going to testify that the meeting never took place, and the prosecution didn't want that.
Now, this is dubious at best. If Weisselberg were to testify that the meeting never took place, the defense would absolutely call him to the witness stand! But they didn't. Why? Because they knew he might not testify that way. Weisselberg was already in jail for perjuring himself regarding Trump undervaluing his properties as a tax dodge! (In fact, he's still in jail.) He was certainly not about to perjure himself for Trump yet again! But the fact that the prosecution couldn't get him to flip on Trump mostly means that Weisselberg thought his best shot at freedom was clamming up, and hoping Trump would pardon him after he (the man hoped) wins the November election. The prosecutors in the hush-money case could probably only offer a reduced sentence, and Weisselberg said, "Thanks, but no thanks." He'd rather have a full pardon sooner than a reduced sentence which ends later.
And Dershowitz thinks his absence is exonerating evidence?
Now, empirically, he's got a bit of a point in that it's a hole in the prosecution's argument. The jury was, in essence, expected to take Cohen's word for it, and he'd already been proven in court to have lied under oath. He did two years' worth of jail time for it. So why should he be believed? Because previously, Cohen lied for Trump. And that means he is more likely than not to be telling the truth after his employment by Trump came to an inglorious end.
The jury caught on to this. Dershowitz somehow did not.
Yet this missing witness is a huge point for Dershowitz, and he was disappointed the defense didn't make a bigger issue of it. Again, this goes directly to Dershowitz' belief that he could have done a better job, and therefore (to his mind) Trump didn't get a fair shake. But is that a legitimate viewpoint, or simply narcissism?
Dershowitz' second moment of guilt or innocence involves the 89-second call in which Trump's former bodyguard, Keith Schiller, was allegedly called by Michael Cohen in order to discuss the payout money to Stormy Daniels with Trump. Schiller was not called to testify, likely because he is still loyal to Trump, and prosecutors had no way to compel him to testify. But Dershowitz feels that his absence is crucial, since he's the only other person who could corroborate anything Cohen said. On the witness stand, Cohen was grilled hotly by the defense regarding this alleged phone call. Some text messages were presented in which Cohen complained to Schiller about receiving prank phone calls, and those messages were sent just before Cohen made this particular phone call. According to the defense, the phone call to Schiller was in regard to those prank calls, and not about the Stormy Daniels payout. Cohen countered that he didn't believe that was accurate.
Taken by itself, Dershowitz could have had a point, here. But why would Cohen phone Schiller about some crank calls when he already addressed that issue with text messages? A phone call made afterwards, it stands to reason, must have pertained to something else.
The jury certainly thought so. Dershowitz does not.
It was also argued, by Cohen, and the prosecution, that Cohen didn't need to be believed, because everything he testified about was corroborated by documents and records.
"Yeah, except for the two main points that would prove guilt!" says Dershowitz.
Really? Everything else proves Cohen wasn't lying, but lack of corroboration on these two points proves he is? Doesn't that amount to wishful thinking? Doesn't Cohen's own testimony count as evidence too? Isn't it the jury's decision as to whether or not his testimony is valid?
Ultimately what these objections boil down to is this: Dershowitz thinks Cohen is lying, but only on the two main points he highlights, which is just barely plausible, but unlikely. The jury, on the other hand, thought he was telling the truth. But that's their call to make, not Dershowitz'! If he doesn't like it, too bad. That's not a "miscarriage of justice." That's just how the system works.
And Dershowitz freely acknowledges that there is a danger in second-guessing a trial from the outside. There are things that only the lawyers inside the case might know about. Certain rulings might have been made, various agreements done beforehand, etc. Yet he thinks his opinion of the matter is superior anyway.
Likewise, he freely acknowledges that there were two lawyers on the jury. Wouldn't they have detected any improprieties in the procedure and raised questions?
The part Dershowitz always leaves out is that there was a Trump sycophant on the jury. And even he had to acquiesce to the evidence and find Trump guilty on all 34 counts of fraud. Dershowitz must find that fact uncomfortable, because he never discusses it.
There are other absurd points Dershowitz tries. For example, he often argues that the proceedings were backwards; that the prosecution should have presented closing arguments first, thus giving the defense a chance to rejoinder. According to him, it's not fair for the defense to be asked to make closing arguments first, and then not be able to rejoinder what the prosecution argues.
This is patently absurd. Yes, the defense usually goes second, but not always. Various procedural situations might result in the prosecution arguing afterward. But regardless of which side goes first, the opposition may call to redirect and answer back any of the points raised in the closing statement. In other words, the defense had a chance to argue back the prosecution's closing. Yet according to the court transcript, they failed to do so.
Maybe Dershowitz wouldn't have allowed an opportunity like that to go by. But that doesn't make things "backwards," as he so strangely claims.
It was argued during trial that if the Stormy Daniels case had come out before the 2016 election, Trump might not have been elected president. The prosecution therefore argued that Trump's actions constituted election interference. Dershowitz thinks this is crazy. The Access Hollywood "grab her by the pussy" tape had already been released, and if that didn't change the outcome, he says, nothing would.
I strongly disagree. The main reason Trump's scandal didn't result in a loss isn't because the Access Hollywood tape didn't have enough of an effect. It was because James Comey re-opened the investigation into Hillary's emails only a few days before election day! (Why isn't that election interference?) Up until that point, polls showed Hillary had a fair lead. And what was the result of this renewed investigation? Exactly nothing! But we didn't learn about that until after the election was over.
So play this scenario out: James Comey re-opens the Clinton investigation. But then, the Stormy Daniels story leaks, and Trump is back underwater again. Clinton eeks out a victory, and Trumpism is dead.
That scenario could very easily have played out! But Dershowitz somehow doesn't think so.
"New York overwhelmingly went against Trump," he points out. "The story wouldn't have resulted in a different outcome in New York."
Oh, like the story wouldn't have affected all 50 states?! Come on!
Again, Dershowitz believes fervently that he would have done a better job in Trump's defense. I acknowledge that he's probably right. But that by itself wouldn't have guaranteed a different outcome. In the end, the case against Trump was solid. Not perfect, and not completely airtight (how many cases ever are?) but solid. And people have been convicted of far more on far less.
Our justice system isn't perfect. And neither is Dershowitz, a long-champion of this imperfect system. He believes strongly in an imbalanced system that lets 10 guilty people go free rather than have 1 innocent person be convicted. How dare he, after years of contributing to the imperfection, now complain about an outcome he doesn't like?
Perhaps defending shady characters for so long has taken its toll on the man. Perhaps putting himself in the mindset where he could defend such people caused him to take on some of their qualities through osmosis. This possibility reminds me of that classic quote from Kurt Vonnegut's amazing novel, Mother Night, which goes something like this:
"Be careful what you pretend to be. Because in the end, you are what you pretend to be."
In the case of Dershowitz, he was a devil's advocate for so long, he became a devil himself.
He truly is an American tragedy.
Eric
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