Harvard law professor Alan Dershowitz examined the new indictments against President Donald Trump and discovered a fatal flaw.
“I have no doubt that if the shoe were on the other foot Mr. Trump would be demanding prosecution of his political opponents, but two constitutional wrongs do not make a constitutional right,” the legal scholar said.
“It is true that the law must apply equally to all, but it is equally true – and it has always been the case – that the law should take into account the realities of our democratic electoral system.
“Thus the standard for an incumbent administration prosecuting its political enemies, and especially the strongest opposition candidate, must be considerably higher than in the ordinary case because Democracy itself is at stake.
“In describing the standards that must be employed in such highly political cases, I have articulated two criteria – the first is the ‘Nixon standard.’
“When President Nixon was threatened with impeachment, prosecution, or both for his obvious crimes, members of his own party joined in the call for his resignation.
“I am confident that if Mr. Trump had been caught on tape offering or accepting a personal bribe, many Republicans would join the demand for his prosecution.
“But the current indictments, and especially the most recent one, do not come close to meeting the daunting Nixon standard.
“The indictment against Mr. Trump for possession of classified material meets the highest evidentiary standard, but it does not meet the standard for a crime that is sufficiently serious to warrant prosecution in the midst of a presidential campaign.
“Perhaps the superseding indictment alleging that Mr. Trump ordered the destruction of videotapes may meet that standard, but the evidence cited in the indictment seems questionable and based largely on hearsay statements.
“This brings us to the January 6 indictment,” Dershowitz said.
“Here the crime is very serious, but the evidence seems lacking.
“I am aware of no direct eye- or ear-witness testimony that would prove beyond the reasonable doubt that Mr. Trump himself knew and believed that the election was fair and that he had lost.
“Indeed the evidence of which I am aware strongly suggests that Mr. Trump had convinced himself — quite wrongly in my view — that it had been stolen from him.
“If this is the case then any prosecution under this indictment would fail to meet the Nixon standard.
“The other standard that must be met is what I have called the ‘What Aboutism’ question.
“It is entirely fair to ask: ‘what about Hillary Clinton? What about Joe Biden? What about Mike Pence? They too possessed classified material after they left office.’
“There are of course considerable differences among these cases, especially with regard to cooperation.
“But failure to cooperate is not a crime; it is a right under the Fifth and Sixth Amendments.
“No incumbent administration should ever prosecute a leading candidate against its president unless there is a widespread consensus among reasonable Americans of all parties and backgrounds that the prosecution is beyond legitimate controversy.
“None of the current indictments, in my view, meet that daunting standard.”
Biden, Prosecuting His Rival, Fails To Meet the ‘Nixon Standard’ in Trump Indictmentshttps://t.co/d9X2xRgtQ4
— Alan Dershowitz (@AlanDersh) August 4, 2023