Emeritus Harvard criminal law prof Alan Dershowitz has become a marginalized academic over the past few years, but upped his game when he undertook to play a neutral constitutional scholar on behalf of Team Trump in the impeachment “trial” in the Senate.
Part of that defense, in Dershowitz’s words, is that “if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”
Those comments were immediately criticized — including by a number of law professors at Harvard University, where Dershowitz is Felix Frankfurter Professor of Law Emeritus — as meaning that a president can do virtually anything, as long as he or she believes it’s in the public interest.
Dershowitz has since said that he was deliberately misinterpreted by his political opponents. He believes that his rivals are smart enough to know what he really meant.
To be fair, the interpretation of what Dersh argued was less than generous. To be even fairer, it’s his job to articulate his argument well enough to be precise, not to be so vague or unclear as to open himself to such “deliberate misinterpretation.” It’s not as if Dersh was speaking off the cuff and didn’t have an opportunity to smith his words with precision.
His argument, which wasn’t good to begin with, exposed him to being slammed for contending that the president’s perception of what’s in the public interest, such as his being re-elected because he’s the ginchiest president ever, somehow entitles him to engage in corrupt acts to accomplish his goal because he perceives the ultimate outcome, his re-election, to be in the public interest. Okay then.
But Chris Wallace went after Dersh, who otherwise put his own target on his back, for the one thing that Dersh didn’t do wrong.
“Over the years, you have represented some pretty controversial figures,” Wallace noted before naming off some of the clients: O.J. Simpson, Mike Tyson and Jeffrey Epstein.
“I understand the principle of everyone has a right to a defense, but why would you spend your time, why would you spend your talents defending such unsavory characters.”
Dersh gave a yeoman’s reply.
“Because the Constitution requires that the most despised people, the most controversial people must get a defense,” Dershowitz replied. “I decided after being in the Soviet Union, I would never allow public opinion to impact my decision.”
Wallace then followed up with a point that has gained a good deal of popularity lately, not just among the cocktail party crowd, but among social justice activists and, most disturbingly, public defenders.
“What about your personal opinion?” Wallace asked. “Aren’t there some people, you would say, ‘They have a right to a defense, I just don’t want to be part of it.’”
Dersh continued down his palatable, if unsatisfying, path.
“I want to be part of cases where nobody else is willing to come in and do the case,” Dershowitz said. “In this case, the Constitution was being absolutely compromised!”
Since Dersh gets to speak for himself, whether he articulates his position well or offers platitudinous crap for lack of any better answer, his falling back on the Constitution isn’t a bad answer, but ignores the crux of the question. Why these defendants? They didn’t lack for representation had you turned them down. They had the wherewithal to retain excellent lawyers, even if the lawyers (like Dersh) were willing to take on the cause of these socially unacceptable defendants. Why did it have to be you, Dersh?
This, as every criminal defense lawyer knows, is a variant on the cocktail party question, which unsurprisingly Dersh answered quite differently when he was doing less Fox and more MSNBC. To the “outside” world, both non-lawyers and non-criminal-defense lawyers, and maybe even to the public defenders now who believe they’re wrapped in the virtue of having no choice, but would never defend the unsavory if they had the ability to pick only those defendants they deem worthy of representation, we mutter a palatable explanation tied up in a lofty constitutional ribbon.
But it’s not really true. The truth is both simpler and uglier than what Dersh had to say to Wallace.
Because the real answer is short and sweet. Criminal defense lawyers defend the accused because that’s what we do. We don’t need an excuse to do it. We just do, because if we didn’t, there would be no possibility of a system that offers any chance against the government.
For those of us who chose this life, or allowed this life to choose us, we stopped pondering existential questions of justice and morality. Instead, we recognized that it’s not our job to decide truth and falsity, right and wrong, justice and injustice. Philosophers can ponder such matters as they cash their paychecks. We defend the accused. Some may be innocent. Some may be guilty, but not so guilty as they say. Some may be guilty as charged, if not worse. We don’t think about it.
If someone is accused, we defend. He may be the most sympathetic defendant ever or the least. We never give it a second thought. The minute we start playing arbiter of good and evil, the whole thing falls apart. The Constitution. The right to a defense. The possibility of an innocent person being convicted. The right of even the worst, scummiest, most awful person alive to challenge the government to prove guilt.
But why take on that “most awful person’s” case? Because that’s what we do. Hate us for it all you want. That, too, is our lot in life. You can beat up Dersh for having offered a really bad argument on behalf of Trump, but that his career is made up of choosing to defend some of the most unsavory defendants around isn’t cause for criticism. Heck, it’s the best that can be said of Dersh, that he never lets the popularity of a client or the crime influence whom he will represent.
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“Why these defendants?” Because they are famous (or infamous) and defending them will get him a lot of publicity.
There’s Dersh. There’s the question. Do you think this is really just about Dersh?
Granted that a lawyer may make a sketchy argument in court if he feels it’s the best he can do for his client, but does he have an obligation to go on TV and try to make us all stupider
The TV thing is a separate issue/problem. Unfortunately, that’s an affliction shared by more than Dersh.
I can’t say why this post did it, but sit down as I’m about to go off.
First, there’s the woke, who are all for the rights of certain demographics of defendants, where everything is racism, ignoring that there are more white people in prison than black people, and the same shit system crushes all defendants. That might be forgivable idiocy, because you can’t expect the useful idiots to grasp any more than the PD race hucksters on twitter sell them, but they completely ignore the complexity of the problems and come up with solutions grounded in their ideological nonsense, doomed to fail in general and harm in particular.
Did victims of crime suddenly stop being victims? Do they really think bad dudes aren’t going to be bad, or are going to disappear? Does anybody find it less painful to be beaten by a black guy than a white guy? Will they cry the same tears when it’s their kid killed by a stray bullet? What the fuck is wrong with these fools?
But it’s not just the woke crying racism about everything. I remember your ripping Clark from Cato a new asshole for aggressively arguing his “right” to reject the presumption of innocence when he felt like it. So much for the libertarian position, and he’s now busy on the twitters spewing the same crowd-pleasing ignorant platitudinous crap to bask in the adulation of the same useful idiots as the woke. What a validation whore he turned out to be.
Finally, there’s the PDs, busy telling each other how fierce and strong they are for waking up in the morning without tripping on their dicks. Oh mean judges are so mean. Oh mean old curmudgeon defense lawyer is so mean. Oh how sad we are, obsessing about ourselves and our wonderfulness, while pretending to give a shit about clients who just annoy us anyway, not that it matters as we fail them because the world is against us. For fuck sake, man up, little pussies.
But they are at the lead hating defendants, as long as they are the right defendants to hate. Fuck them all. Criminal defense will be dead, at least for those who aren’t worthy of their tears because they’re the wrong color, gender or committed a crime against someone they’re supposed to care about.
You say we defend because that’s what we do. That’s not what they do, and they’re proud of it.
Tell me how you really feel, SS.
Chris Wallace: “Over the years, you have represented some pretty controversial figures,” Wallace noted before naming off some of the clients: O.J. Simpson, Mike Tyson and Jeffrey Epstein.
“I understand the principle of everyone has a right to a defense, but why would you spend your time, why would you spend your talents defending such unsavory characters.”
Honest Dersh: “Because you won’t put my face on TV for representing indigent defendants, Chris. Plus there’s no money in it.”
What’s that quote from Mrs. Roosevelt about small minds again?
Fear not, your decision to write a post about the Dersh this morning has had no impact on my estimate of your intellect. And speaking of Eleanor Roosevelt, did you know she was an anti-semite?
You’re doing it again, Jake.
I’ve read, and maybe it was in your blog, that a defense attorney makes the prosecutor prove every requirement of the law. Or tries to, against some egregious behavior by prosecutors.
No matter the heinous defendant, this puts a check on state power that I appreciate, despite the low odds that I will ever be prosecuted. This directs the system towards the rule of law rather than the arbitrary opinions of prosecutors and politicians.
Conformance to the law doesn’t happen automatically, and isn’t enforced primarily in the trials of innocent people.
Why is it that criminal defense lawyers get asked all the time, most frequently by people who do not understand either the constitutional right to representation by competent legal counsel, nor the ethics of the criminal defense bar that encourages criminal defense lawyers not to shy away from difficult cases or unsavory defendants: “How can you represent that creep?” And yet members of the medical profession — doctors and nurses — never get asked why they treat, and saves the lives of, these very same awful people?
Harvey A. Silverglate, criminal defense lawyer in Cambridge, MA
An excellent question.