August 29, 2023
Dear Friends and Family,
This segment focuses on the political instability of our Justice System. It features excerpts from two leading constitutional scholars in our country: Alan Dershowitz, a noted Harvard Law School professor who has advised many presidents and prime ministers and Senator Ted Cruz, who Professor Dershowitz refers to as his best student in 40 years of teaching. The excerpts are from Dershowitz’s book Get Trump and Cruz’s book Justice Corrupted.
At the heart of the excerpts are seven instances where the Justice System has been weaponized since 2013 that has led to further political instability. They are:
Commentary: Reading the last four segments of the series could be disheartening. But solving problems cannot begin until the problem is recognized and defined. Unfortunately, given the information provided to the public, the Biden administration is doing neither. Therefore, we have to do it ourselves, if for no other reason to be able to evaluate the candidates to vote for in 2024. We should also help others to do the same. As a reminder there are three ways to convey the content of this series: you have my permission to send any or all of these segments to others, provide me their email addresses and I will do it for you, or refer people to my blog www.learningwithharley.com.
Happy Learning,
Harley
Dear Friends and Family,
This segment focuses on the political instability of our Justice System. It features excerpts from two leading constitutional scholars in our country: Alan Dershowitz, a noted Harvard Law School professor who has advised many presidents and prime ministers and Senator Ted Cruz, who Professor Dershowitz refers to as his best student in 40 years of teaching. The excerpts are from Dershowitz’s book Get Trump and Cruz’s book Justice Corrupted.
At the heart of the excerpts are seven instances where the Justice System has been weaponized since 2013 that has led to further political instability. They are:
- The Internal Revenue Service – Targeting citizens based on their politics.
- The Federal Bureau of Investigation – Targeting a political opponent Crossfire Hurricane.
- January 6th – Embellishments.
- Politicized District Attorneys – Non-prosecution of criminals.
- Demonization of Police Officers – by the Left.
- Lack of Legally Required Protection for Supreme Court Justices – by Department of Justice.
- Going after Political Enemies; Two-Tiered Justice System – by Department of Justice.
Commentary: Reading the last four segments of the series could be disheartening. But solving problems cannot begin until the problem is recognized and defined. Unfortunately, given the information provided to the public, the Biden administration is doing neither. Therefore, we have to do it ourselves, if for no other reason to be able to evaluate the candidates to vote for in 2024. We should also help others to do the same. As a reminder there are three ways to convey the content of this series: you have my permission to send any or all of these segments to others, provide me their email addresses and I will do it for you, or refer people to my blog www.learningwithharley.com.
Happy Learning,
Harley
SEEKING WISDOM FOR AMERICA – SEGMENT 8
ROMAN DECLINE #3: POLITICAL INSTABILITY JUSTICE (B) – EXCERPTS
THE WAY JUSTICE IS SUPPOSED TO WORK: Justice is blind. She wields a sword and holds a set of scales. The sword represents the terrible punishment government can inflict, up to and including taking a human being’s life. The scale stands for fairness, a careful measuring of the facts and the evidence in any given case. But neither one of these potent symbols matters as much as the blindfold over Lady Justice’s eyes. Her eyes work fine, of course, but she chooses not to see. Race, gender, wealth, privilege – Justice should see none of them. The same goes for Party and ideology. The Department of Justice should not be Republican or Democrat. It should be utterly apolitical, and the attorney general should enforce the law fairly and justly regardless of party affiliation.
Justice without the blindfold is a vengeful angel wielding power as a weapon to intimidate and oppress, not the guardian on whom we all rely in our hours of need. Lord Acton famously observed, “Power tends to corrupt, and absolute power corrupts absolutely.” Our nation’s founding fathers understood this principle, and for that reason the Constitution was designed, as Jefferson put it, as chains to bind the mischief of government.
For almost a century, the Department of Justice mostly discharged its duties without fear or favor, bringing lawsuits against people who had violated the law. Although the president was formally in charge of the entire executive branch – of which the Department of Justice, as well as our nation’s intelligence agencies, are a part – it was generally accepted that the Department of Justice, like the Supreme Court, was not supposed to dabble in partisan politics.
WEAPONIZATION OF GOVERNMENT:
1. The Internal Revenue Service (IRS): In May 2013, the Treasury Department’s inspector general released a bombshell report that explicitly concluded, “the IRS used inappropriate criteria that identified for review Tea Party and other organizations applying for tax-exempt status.” The next day, a visibly embarrassed Obama was forced to address the scandal at a White House press conference. He admitted the conduct was “inexcusable” and claimed to be “angry” about it.
The next week, the House Oversight and Government Reform Committee questioned the IRS Exempt Organization director Lois Lerner about the improper targeting carried out by the bureaucrats under her direction. Each time, when she was asked about the IRS targeting Tea Party groups, she asserted her Fifth Amendment right, refusing to answer because doing so could incriminate her personally in criminal conduct. Despite her refusal to testify she was not fired. Instead, she was placed on administrative leave, and several months later she was allowed to retire (with pension) from the IRS. The next year she was called by the House once more to testify and again she plead the Fifth. As a result, the House voted 231-187 to hold her in contempt of Congress for defying a duly issued subpoena. Congress asked the Department of Justice to pursue criminal charges against her.
Two months later, during a session of the Senate Judiciary Committee, citing the pattern of abuse from the IRS, I introduced two amendments that would have made it illegal to target American citizens based on their politics. On February 27, my Democratic colleagues on the Judiciary Committee voted unanimously against both amendments. They were willing to do nothing to prevent future abuse of the IRS.
So, if another president – say, Joe Biden, who has already advocated for a new law that would empower the IRS to track every single banking transaction over $600 – wanted to sic the IRS on his political opponents he wouldn’t need much justification to do so. The tax code is so complicated that it can be weaponized against virtually anyone at any time. [NOTE: The 2024 federal budget is requesting approval to hire 87,000 more IRS agents].
2--The Federal Bureau of Investigation (FBI): Crossfire Hurricane: During the final days of the Obama administration, the FBI – with virtually no credible basis – had launched an investigation directly targeting the sitting president’s principal political opponent. Doing so is a big damn deal, and in any properly functioning DOJ the evidence necessary to initiate such a blatantly political investigation should have been required. But it was not. The investigation was named Crossfire Hurricane, led by James Comey and the deputy director Andrew McCabe.
In 2019, DOJ inspector General Michael Horowitz released a detailed look at the Crossfire Hurricane investigation, finding among other things, that the FBI had made 17 significant errors in its application for a FISA warrant against Carter Page.
Source: Justice Corrupted by Ted Cruz (2022).
Special Counsel John Durham’s Report following a four-year investigation of Crossfire Hurricane: The government possessed no verified intelligence reflecting that Trump or the Trump campaign was involved in a conspiracy or collaborative relationship with officials of the Russian government. Neither U.S. law enforcement nor the Intelligence Community possess any actual evidence of collusion in their holding at the commencement of the Crossfire Hurricane investigation.
FBI personnel repeatedly disregarded important requirements when they continued to seek renewals of that FISA surveillance while acknowledging that they did not genuinely believe there was probable cause to believe that the target was knowingly engaged in clandestine intelligence activities on behalf of a foreign power, or knowingly helping another person in such activities. [Note: In other words, the investigation lacked the predicates needed to even open the investigation –including the two long Mueller Investigation -- it was indeed – a witch hunt].
Source: Special Counsel Durham’s executive summary (2023).
3—January 6th: For the next few weeks following January 6, Washington and the country saw a level of political theater rarely experienced in public life. Almost immediately after the events of January 6, Nancy Pelosi and Chuck Schumer ordered the construction of massive metal fences surrounding the Capitol grounds, atop which razor wire sat in thick, menacing coils. The Capital looked like Baghdad. Thousands of members of the National Guard were summoned to Washington, D.C. In full camouflage gear, they stood along the fence and by the gates holding machine guns. The guns, however, were all unloaded. They held M16s without any magazines or any bullets. Very soon, when it became clear that these guardsmen were being used as political props, red state governors called them home. For the next several months, the Capitol was guarded from nearby blue states.
The reason Pelosi and Schumer wanted the image of thousands of guardsmen with scary guns, was to convey that every Republican in America—especially those who voted for Donald Trump or expressed doubts about the election—was a dangerous terrorist and a threat to our nation. It was cynical. It was partisan. And it was a lie. All of this extreme rhetoric has done enormous damage to our nation.
In the end, my view of what happened on January 6 can be summed up neatly. Anyone who committed acts of violence should be prosecuted. If you assaulted a police officer, you should go to jail – for a very long time. That is true whether you’re left-wing, right-wing, or have no wings whatsoever. And finding and prosecuting the actual terrorists who planted pipe bombs at both the RNC and DNC on January 6 should be a critical priority for the DOJ. Conversely, anyone who engaged in peaceful protests on that day had the constitutional right to do so. Tens of thousands of peaceful protestors gathered on January 6 to speak up for their nation and to defend President Trump. Democrats and the media cravenly attempted to paint these peaceful protestors as violent criminals. Anytime you hear someone describing what occurred on January 6 and an “insurrection,” you know they are engaging in misleading political rhetoric. It was not an insurrection. An insurrection is an armed rebellion organized to overthrow the government. What happened on January 6 does not remotely meet the definition.
Source: Justice Corrupted by Ted Cruz (2022)
There is an enormous difference between doing the wrong thing and being criminally indicted. Trump did the wrong thing. He should never have made that speech on January 6th but it was constitutionally protected. It was no incitement. It was advocacy under the leading cases in the Supreme Court. Again, as usual, Trump’s enemies are overstating the situation.
The referral by the January 6 committee to the Justice Department for possible criminal prosecution violates both the letter and the spirit of the Constitution for at least two reasons. First, under our system of separation of powers, the power to prosecute lies exclusively with the executive branch through the Justice Department. Congress has no authority to refer specific individuals for prosecution. It is beyond the scope of its constitutional authority. Second, our Constitution prohibits Congress from prosecuting named individuals. The power of Congress is limited to passing laws of general application that can be applied to specific individuals only by the Justice Department and a grand jury. A congressional committee officially voting to refer a named individual for prosecution violates the spirit of the explicit prohibition against congressional bills of attainder. The Justice Department really doesn’t need a referral from Congress, nor should it pay any attention to it.
Source: Get Trump by Alan Dershowitz (2023)
4—Politicized District Attorneys: When it comes to the prosecution of criminals, there are few elected officials with more power than your district attorney. As soon as they’re elected, district attorneys have the power to decide what crimes to prosecute in your county and whom to prosecute. Electing radical DAs dramatically increased the chance that criminal prosecutions will be used as partisan weapons to target their political opponents. But, perhaps even more important, DAs have enormous discretion about which cases not to prosecute. Each one of George Soros’s funded and preferred DA candidates won their races. Either the people who voted in these cities had become extremely liberal and insane overnight, or those millions of dollars played a major hand in the victories. No matter what the people in these counties wanted – no matter how they attempted to make their voices heard – they could now be effectively overruled by enormous amounts of money.
For the next four years, these “Soros prosecutors” wreaked havoc in counties across the U.S. They used their immense discretionary power to achieve their benefactor’s goal of remaking the U.S. justice system from the bottom up. They would work not to prosecute criminals and make our cities safer, as such things apparently did not matter to the billionaire donor who supported them. Instead, they would attempt to achieve social and racial “equity” at all costs, working to make sure that as few people went to jail as possible.
5—Demonizing Police Officers: For years, elements of the radical left had been pushing a narrative that all police officers are racist by nature. They claimed that men and women in law enforcement treat Black people differently than White people – that when officers came across a Black suspect, they treat that suspect differently based on the color of their skin.
Not only was this ideology dangerous, sure to lead to a dramatic upsurge in violence against the men and women of our police forces. It was also flat-out wrong.
6—Lack of Protection for Supreme Court Justices: On May 2, 2022, a draft of an opinion by Justice Samuel Alito was leaked to two reporters of Politico. This draft opinion, written to speak for a majority of the Court, would hold that “Roe and Casey must be overruled.” If the goal was to put political pressure on the justices, it worked. In the days that followed there were protests all over the country. Abortion rights activists published the home addresses of Supreme Court justices. These orchestrated left-wing protests outside the justices’ homes are a federal criminal offence. Specifically, 18 U.S.C. 1507 provides,
Whoever, with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty, pickets or parades in or near a building housing a court of the United States, or in or near a building or residence occupied or used by such judge, juror, witness, or court officer, or with such intent uses any sound-truck or similar device or resorts to any other demonstration in or near any such building or residence, shall be fined under this title or imprisoned not more than one year, or both.
Notice the language of the criminal statue is mandatory: “shall be fined … or imprisoned. The purpose of the statute is similar to obstruction of justice; it is to prevent threats or intimidation of judges while decisions are pending – precisely what these angry mobs are trying to do. And protesting outside someone’s home – where they sleep at night, and where their children sleep – is by design threatening. I’ve publicly called on Attorney General Garland to prosecute these left-wing mobs. To date, he has refused to do so.
7. Going After Political Enemies: During the presidential campaign, Vice President Joe Biden promised repeatedly that he would keep politics out of the Department of Justice. He repeatedly assured crowds that the DOJ was hopelessly broken, and he was the person to fix it. He would do this by staying away from the DOJ altogether. “The Justice Department under my administration will be totally independent of me,” he said. That was a noble promise. Since taking office, however, President Biden has done precisely the opposite of what he promised to do. He has been unusually present and engaged when it comes to the affairs of the DOJ.
Source: Justice Corrupted by Ted Cruz (2022).
Now that Donald Trump has announced his candidacy for reelection as president, the unremitting efforts by his political opponents to “get” him at any cost will only increase. These efforts may pose the most significant threat to civil liberties since McCarthyism. Some of the means being advocated and employed challenge the very constitutional foundation of our liberty: due process, right to counsel, free speech, and the rule of law. Defenders of Trump’s constitutional rights – even those like me who oppose him politically – are sought to be silenced; their free speech rights attacked, their integrity questioned, and their careers threatened. Much of the media substitutes advocacy against Trump for objective reporting, while many in academia petition and propagandize against his rights they previously valued – all in the interest of getting Trump.
They deny they are hypocrites, applying an immoral double standard. Because Trump is “different” – and the dangers he posed more serious – a different standard is justified. They are righteous in their willingness, indeed eagerness, to weaponize and distort our criminal justice systems to target their political enemy. Weaponizing the law to target political enemies is the way of tyrannies not democracies.
As Lavrentiy Beria, the notorious head of the Soviet KGB assured Stalin: “Show me the man and I will find you the crime.” Today “the man” is Donald Trump. And the “Get Trump” radicals are desperately trying to “find” crimes – or in some cases to simply make them up. Statutory crimes such as conspiracy, obstruction, RICO, espionage, sedition, mishandling of secrets, and election laws are vague enough to allow partisan abuse of discretion. “With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone, In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. This is antithetical to democracy, but especially so if the target is likely to run against the incumbent president in the coming election. No one is above the law but digging to find crimes in order to influence an election does not constitute the equal application of the law.
In addition to targeting Donald Trump himself, the “Get Trump” campaign is also out to get his lawyers, and anyone associated with him. The targeting of his lawyers is especially troubling, since it implicates the Sixth Amendment right to effective assistance to counsel. Good lawyers are understandably afraid of becoming the subjects of criminal or bar investigations if they dare to defend Trump.
I have voted against Trump twice and I demand my constitutional right to vote against him a third time if he is nominated. That fundamental right should not be taken away from me or from those who would vote for him by “Get Trump” citizens or bureaucrats who are prepared to weaponize our system of justice in order to prevent his election. Democrats and Republicans, liberals and conservatives, old and young, black and white, should all remain united against efforts to undercut democracy by employing tactics that personify totalitarian regimes: namely, selectively searching for and finding technical, obscure, or questionable crimes and other tactics that could be charged against opposing candidates.
The Search of Trump’s Home: The decision by the Justice Department to conduct a full-scale morning raid on former president Trump’s Mar-a-Lago home does not seem justified. If it is true that the basis of the raid was the former president’s alleged removal of classified material from the White House, that would constitute a double standard of justice. There were no raids, for example, on the homes of Hillary Clinton or former Clinton administration national security adviser Sandy Berger for allegations of mishandling official records in the recent past. Previous violations of the Presidential Records Act typically have been punished by administrative fines, not criminal prosecution. For zealous Trump haters, anything done to Trump is justified. For zealous Trump lovers, nothing done to him is ever justified. For the majority of moderate, thoughtful Americans, however, the Justice Department’s raid likely seems to be unjust or needlessly confrontational. The burden of proof is now on the Justice Department and the FBI to justify what appears to be unequal justice.
This is what it’s come to in American media, academia, and politics. Arguments aren’t made or judged on their merits or demerits. The only criteria are which side is benefited by how the issue is decided. A winning argument on its merits will be attacked if it is made by the wrong person or party. A losing argument will be praised if it helps the right person of party. Hypocrisy reigns. And those who engage in it are not even embarrassed when their double standards are exposed. The current principle is that the ends justify the means, especially if the end is the end of Trump.
Then there is the manner by which Trump loyalists have been treated when they were indicted. They have been arrested, handcuffed, and chackled, despite not having been charged with crimes of violence and despite the absence of evidence that they were planning to flee. In my long experience, most other comparable defendants are simply notified of the charges and ordered to appear in court. Yet despite this apparent double standard, the left has been silent. Equal justice for Democrats and Republicans must not only be done; it must be done. There must be one law – and one application of the law – for all comparable acts and persons.
This unacceptable double standard is so widespread that it endangers the rule of law and the historic role of neutral, non-partisan civil liberties that protect it from partisan weaponization. There cannot be one rule for Democrats and another for Republicans.
DEATH OF NUANCE IN POLITICS and the MEDIA: Gone are the days when friends could disagree and yet respect each other’s views. Today long-term friendships end over an unwillingness to acknowledge that there may be two sides to a divisive issue. Counter arguments are not answered by facts or logic but by ad hominem insults.
Certainty and intolerance of opposing views are the hallmarks of intellectual tyranny that easily morph into political tyranny. If one is certain of the absolute correctness of his views, he often sees no need for the right to dissent or the need for due process. We are seeing that today among many in the “woke” generation who believe that their noble ends justify ignoble means, such as shutting down debate and denying due process to those accused of politically incorrect sins or crimes. The road to political hell is indeed paved with certainty that one’s intentions are good. Or as the great Justice Louis Brandeis taught us a century ago, “the greatest dangers to Liberty lurk in the insidious encroachment by men of zeal but without understanding.”
Today, not only is nuance not welcome in most political dialogue; it is punished. Those deemed guilty of compromising the narrative by introducing nuance are regarded as traitors to the cause and attacked, cancelled, or shunned. Others, who by their nature are open to compromise, are discouraged from participating in the discussion.
CONCLUSION: As a liberal democrat and former National Board Member of the ACLU, I am particularly concerned that the left can no longer be counted on to oppose oppression – when it come from the left. Democrats, liberals, and civil libertarians were on the forefront of opposing the excesses of Republican administrations. I supported them when they did so. But now that the unconstitutional oppression is coming largely from the left, these groups are either silent or complicit. They have shown the world that their opposition to Republican oppression was partisan and tactical rather than principled and neutral. They have lost their credibility as guardians of the Constitution for all. I cannot remain silent in the face of hypocrisy, double standards, and unprincipled partisanship.
Source: Get Trump: The Threat to Civil Liberties, Due Process, and our Constitutional Rule of Law by Alan Dershowitz (2023)
ELECTION INTEGRITY LEGISLATION: To understand why the Biden DOJ is suing both Texas and Georgia for our election laws, you must understand the election system today’s Democrats want to mandate. The very first bill filed in the Nancy Pelosi House was HR1: the first bill filed in Chuck Schumer’s Senate was S1. Both are essentially the same bill: a federal takeover of our election laws that I and many others have dubbed the Corrupt Politicians Act. It would
IN SUMMATION: And if and when Republicans take over Congress, I hope and pray that it is just the first step in winning back the White House in 2024 and – critically – restoring integrity to the Department of Justice, the FBI, and our entire legal system. If we value liberty, if we value the rule of law, it is incumbent on us to make that happen.
Source: Justice Corrupted: How the Left Weaponized Our Legal System by Ted Cruz (2022)
The unabbreviated version of the above can be found in the pdf document below.
ROMAN DECLINE #3: POLITICAL INSTABILITY JUSTICE (B) – EXCERPTS
THE WAY JUSTICE IS SUPPOSED TO WORK: Justice is blind. She wields a sword and holds a set of scales. The sword represents the terrible punishment government can inflict, up to and including taking a human being’s life. The scale stands for fairness, a careful measuring of the facts and the evidence in any given case. But neither one of these potent symbols matters as much as the blindfold over Lady Justice’s eyes. Her eyes work fine, of course, but she chooses not to see. Race, gender, wealth, privilege – Justice should see none of them. The same goes for Party and ideology. The Department of Justice should not be Republican or Democrat. It should be utterly apolitical, and the attorney general should enforce the law fairly and justly regardless of party affiliation.
Justice without the blindfold is a vengeful angel wielding power as a weapon to intimidate and oppress, not the guardian on whom we all rely in our hours of need. Lord Acton famously observed, “Power tends to corrupt, and absolute power corrupts absolutely.” Our nation’s founding fathers understood this principle, and for that reason the Constitution was designed, as Jefferson put it, as chains to bind the mischief of government.
For almost a century, the Department of Justice mostly discharged its duties without fear or favor, bringing lawsuits against people who had violated the law. Although the president was formally in charge of the entire executive branch – of which the Department of Justice, as well as our nation’s intelligence agencies, are a part – it was generally accepted that the Department of Justice, like the Supreme Court, was not supposed to dabble in partisan politics.
WEAPONIZATION OF GOVERNMENT:
1. The Internal Revenue Service (IRS): In May 2013, the Treasury Department’s inspector general released a bombshell report that explicitly concluded, “the IRS used inappropriate criteria that identified for review Tea Party and other organizations applying for tax-exempt status.” The next day, a visibly embarrassed Obama was forced to address the scandal at a White House press conference. He admitted the conduct was “inexcusable” and claimed to be “angry” about it.
The next week, the House Oversight and Government Reform Committee questioned the IRS Exempt Organization director Lois Lerner about the improper targeting carried out by the bureaucrats under her direction. Each time, when she was asked about the IRS targeting Tea Party groups, she asserted her Fifth Amendment right, refusing to answer because doing so could incriminate her personally in criminal conduct. Despite her refusal to testify she was not fired. Instead, she was placed on administrative leave, and several months later she was allowed to retire (with pension) from the IRS. The next year she was called by the House once more to testify and again she plead the Fifth. As a result, the House voted 231-187 to hold her in contempt of Congress for defying a duly issued subpoena. Congress asked the Department of Justice to pursue criminal charges against her.
Two months later, during a session of the Senate Judiciary Committee, citing the pattern of abuse from the IRS, I introduced two amendments that would have made it illegal to target American citizens based on their politics. On February 27, my Democratic colleagues on the Judiciary Committee voted unanimously against both amendments. They were willing to do nothing to prevent future abuse of the IRS.
So, if another president – say, Joe Biden, who has already advocated for a new law that would empower the IRS to track every single banking transaction over $600 – wanted to sic the IRS on his political opponents he wouldn’t need much justification to do so. The tax code is so complicated that it can be weaponized against virtually anyone at any time. [NOTE: The 2024 federal budget is requesting approval to hire 87,000 more IRS agents].
2--The Federal Bureau of Investigation (FBI): Crossfire Hurricane: During the final days of the Obama administration, the FBI – with virtually no credible basis – had launched an investigation directly targeting the sitting president’s principal political opponent. Doing so is a big damn deal, and in any properly functioning DOJ the evidence necessary to initiate such a blatantly political investigation should have been required. But it was not. The investigation was named Crossfire Hurricane, led by James Comey and the deputy director Andrew McCabe.
In 2019, DOJ inspector General Michael Horowitz released a detailed look at the Crossfire Hurricane investigation, finding among other things, that the FBI had made 17 significant errors in its application for a FISA warrant against Carter Page.
Source: Justice Corrupted by Ted Cruz (2022).
Special Counsel John Durham’s Report following a four-year investigation of Crossfire Hurricane: The government possessed no verified intelligence reflecting that Trump or the Trump campaign was involved in a conspiracy or collaborative relationship with officials of the Russian government. Neither U.S. law enforcement nor the Intelligence Community possess any actual evidence of collusion in their holding at the commencement of the Crossfire Hurricane investigation.
FBI personnel repeatedly disregarded important requirements when they continued to seek renewals of that FISA surveillance while acknowledging that they did not genuinely believe there was probable cause to believe that the target was knowingly engaged in clandestine intelligence activities on behalf of a foreign power, or knowingly helping another person in such activities. [Note: In other words, the investigation lacked the predicates needed to even open the investigation –including the two long Mueller Investigation -- it was indeed – a witch hunt].
Source: Special Counsel Durham’s executive summary (2023).
3—January 6th: For the next few weeks following January 6, Washington and the country saw a level of political theater rarely experienced in public life. Almost immediately after the events of January 6, Nancy Pelosi and Chuck Schumer ordered the construction of massive metal fences surrounding the Capitol grounds, atop which razor wire sat in thick, menacing coils. The Capital looked like Baghdad. Thousands of members of the National Guard were summoned to Washington, D.C. In full camouflage gear, they stood along the fence and by the gates holding machine guns. The guns, however, were all unloaded. They held M16s without any magazines or any bullets. Very soon, when it became clear that these guardsmen were being used as political props, red state governors called them home. For the next several months, the Capitol was guarded from nearby blue states.
The reason Pelosi and Schumer wanted the image of thousands of guardsmen with scary guns, was to convey that every Republican in America—especially those who voted for Donald Trump or expressed doubts about the election—was a dangerous terrorist and a threat to our nation. It was cynical. It was partisan. And it was a lie. All of this extreme rhetoric has done enormous damage to our nation.
In the end, my view of what happened on January 6 can be summed up neatly. Anyone who committed acts of violence should be prosecuted. If you assaulted a police officer, you should go to jail – for a very long time. That is true whether you’re left-wing, right-wing, or have no wings whatsoever. And finding and prosecuting the actual terrorists who planted pipe bombs at both the RNC and DNC on January 6 should be a critical priority for the DOJ. Conversely, anyone who engaged in peaceful protests on that day had the constitutional right to do so. Tens of thousands of peaceful protestors gathered on January 6 to speak up for their nation and to defend President Trump. Democrats and the media cravenly attempted to paint these peaceful protestors as violent criminals. Anytime you hear someone describing what occurred on January 6 and an “insurrection,” you know they are engaging in misleading political rhetoric. It was not an insurrection. An insurrection is an armed rebellion organized to overthrow the government. What happened on January 6 does not remotely meet the definition.
Source: Justice Corrupted by Ted Cruz (2022)
There is an enormous difference between doing the wrong thing and being criminally indicted. Trump did the wrong thing. He should never have made that speech on January 6th but it was constitutionally protected. It was no incitement. It was advocacy under the leading cases in the Supreme Court. Again, as usual, Trump’s enemies are overstating the situation.
The referral by the January 6 committee to the Justice Department for possible criminal prosecution violates both the letter and the spirit of the Constitution for at least two reasons. First, under our system of separation of powers, the power to prosecute lies exclusively with the executive branch through the Justice Department. Congress has no authority to refer specific individuals for prosecution. It is beyond the scope of its constitutional authority. Second, our Constitution prohibits Congress from prosecuting named individuals. The power of Congress is limited to passing laws of general application that can be applied to specific individuals only by the Justice Department and a grand jury. A congressional committee officially voting to refer a named individual for prosecution violates the spirit of the explicit prohibition against congressional bills of attainder. The Justice Department really doesn’t need a referral from Congress, nor should it pay any attention to it.
Source: Get Trump by Alan Dershowitz (2023)
4—Politicized District Attorneys: When it comes to the prosecution of criminals, there are few elected officials with more power than your district attorney. As soon as they’re elected, district attorneys have the power to decide what crimes to prosecute in your county and whom to prosecute. Electing radical DAs dramatically increased the chance that criminal prosecutions will be used as partisan weapons to target their political opponents. But, perhaps even more important, DAs have enormous discretion about which cases not to prosecute. Each one of George Soros’s funded and preferred DA candidates won their races. Either the people who voted in these cities had become extremely liberal and insane overnight, or those millions of dollars played a major hand in the victories. No matter what the people in these counties wanted – no matter how they attempted to make their voices heard – they could now be effectively overruled by enormous amounts of money.
For the next four years, these “Soros prosecutors” wreaked havoc in counties across the U.S. They used their immense discretionary power to achieve their benefactor’s goal of remaking the U.S. justice system from the bottom up. They would work not to prosecute criminals and make our cities safer, as such things apparently did not matter to the billionaire donor who supported them. Instead, they would attempt to achieve social and racial “equity” at all costs, working to make sure that as few people went to jail as possible.
5—Demonizing Police Officers: For years, elements of the radical left had been pushing a narrative that all police officers are racist by nature. They claimed that men and women in law enforcement treat Black people differently than White people – that when officers came across a Black suspect, they treat that suspect differently based on the color of their skin.
Not only was this ideology dangerous, sure to lead to a dramatic upsurge in violence against the men and women of our police forces. It was also flat-out wrong.
6—Lack of Protection for Supreme Court Justices: On May 2, 2022, a draft of an opinion by Justice Samuel Alito was leaked to two reporters of Politico. This draft opinion, written to speak for a majority of the Court, would hold that “Roe and Casey must be overruled.” If the goal was to put political pressure on the justices, it worked. In the days that followed there were protests all over the country. Abortion rights activists published the home addresses of Supreme Court justices. These orchestrated left-wing protests outside the justices’ homes are a federal criminal offence. Specifically, 18 U.S.C. 1507 provides,
Whoever, with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty, pickets or parades in or near a building housing a court of the United States, or in or near a building or residence occupied or used by such judge, juror, witness, or court officer, or with such intent uses any sound-truck or similar device or resorts to any other demonstration in or near any such building or residence, shall be fined under this title or imprisoned not more than one year, or both.
Notice the language of the criminal statue is mandatory: “shall be fined … or imprisoned. The purpose of the statute is similar to obstruction of justice; it is to prevent threats or intimidation of judges while decisions are pending – precisely what these angry mobs are trying to do. And protesting outside someone’s home – where they sleep at night, and where their children sleep – is by design threatening. I’ve publicly called on Attorney General Garland to prosecute these left-wing mobs. To date, he has refused to do so.
7. Going After Political Enemies: During the presidential campaign, Vice President Joe Biden promised repeatedly that he would keep politics out of the Department of Justice. He repeatedly assured crowds that the DOJ was hopelessly broken, and he was the person to fix it. He would do this by staying away from the DOJ altogether. “The Justice Department under my administration will be totally independent of me,” he said. That was a noble promise. Since taking office, however, President Biden has done precisely the opposite of what he promised to do. He has been unusually present and engaged when it comes to the affairs of the DOJ.
Source: Justice Corrupted by Ted Cruz (2022).
Now that Donald Trump has announced his candidacy for reelection as president, the unremitting efforts by his political opponents to “get” him at any cost will only increase. These efforts may pose the most significant threat to civil liberties since McCarthyism. Some of the means being advocated and employed challenge the very constitutional foundation of our liberty: due process, right to counsel, free speech, and the rule of law. Defenders of Trump’s constitutional rights – even those like me who oppose him politically – are sought to be silenced; their free speech rights attacked, their integrity questioned, and their careers threatened. Much of the media substitutes advocacy against Trump for objective reporting, while many in academia petition and propagandize against his rights they previously valued – all in the interest of getting Trump.
They deny they are hypocrites, applying an immoral double standard. Because Trump is “different” – and the dangers he posed more serious – a different standard is justified. They are righteous in their willingness, indeed eagerness, to weaponize and distort our criminal justice systems to target their political enemy. Weaponizing the law to target political enemies is the way of tyrannies not democracies.
As Lavrentiy Beria, the notorious head of the Soviet KGB assured Stalin: “Show me the man and I will find you the crime.” Today “the man” is Donald Trump. And the “Get Trump” radicals are desperately trying to “find” crimes – or in some cases to simply make them up. Statutory crimes such as conspiracy, obstruction, RICO, espionage, sedition, mishandling of secrets, and election laws are vague enough to allow partisan abuse of discretion. “With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone, In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. This is antithetical to democracy, but especially so if the target is likely to run against the incumbent president in the coming election. No one is above the law but digging to find crimes in order to influence an election does not constitute the equal application of the law.
In addition to targeting Donald Trump himself, the “Get Trump” campaign is also out to get his lawyers, and anyone associated with him. The targeting of his lawyers is especially troubling, since it implicates the Sixth Amendment right to effective assistance to counsel. Good lawyers are understandably afraid of becoming the subjects of criminal or bar investigations if they dare to defend Trump.
I have voted against Trump twice and I demand my constitutional right to vote against him a third time if he is nominated. That fundamental right should not be taken away from me or from those who would vote for him by “Get Trump” citizens or bureaucrats who are prepared to weaponize our system of justice in order to prevent his election. Democrats and Republicans, liberals and conservatives, old and young, black and white, should all remain united against efforts to undercut democracy by employing tactics that personify totalitarian regimes: namely, selectively searching for and finding technical, obscure, or questionable crimes and other tactics that could be charged against opposing candidates.
The Search of Trump’s Home: The decision by the Justice Department to conduct a full-scale morning raid on former president Trump’s Mar-a-Lago home does not seem justified. If it is true that the basis of the raid was the former president’s alleged removal of classified material from the White House, that would constitute a double standard of justice. There were no raids, for example, on the homes of Hillary Clinton or former Clinton administration national security adviser Sandy Berger for allegations of mishandling official records in the recent past. Previous violations of the Presidential Records Act typically have been punished by administrative fines, not criminal prosecution. For zealous Trump haters, anything done to Trump is justified. For zealous Trump lovers, nothing done to him is ever justified. For the majority of moderate, thoughtful Americans, however, the Justice Department’s raid likely seems to be unjust or needlessly confrontational. The burden of proof is now on the Justice Department and the FBI to justify what appears to be unequal justice.
This is what it’s come to in American media, academia, and politics. Arguments aren’t made or judged on their merits or demerits. The only criteria are which side is benefited by how the issue is decided. A winning argument on its merits will be attacked if it is made by the wrong person or party. A losing argument will be praised if it helps the right person of party. Hypocrisy reigns. And those who engage in it are not even embarrassed when their double standards are exposed. The current principle is that the ends justify the means, especially if the end is the end of Trump.
Then there is the manner by which Trump loyalists have been treated when they were indicted. They have been arrested, handcuffed, and chackled, despite not having been charged with crimes of violence and despite the absence of evidence that they were planning to flee. In my long experience, most other comparable defendants are simply notified of the charges and ordered to appear in court. Yet despite this apparent double standard, the left has been silent. Equal justice for Democrats and Republicans must not only be done; it must be done. There must be one law – and one application of the law – for all comparable acts and persons.
This unacceptable double standard is so widespread that it endangers the rule of law and the historic role of neutral, non-partisan civil liberties that protect it from partisan weaponization. There cannot be one rule for Democrats and another for Republicans.
DEATH OF NUANCE IN POLITICS and the MEDIA: Gone are the days when friends could disagree and yet respect each other’s views. Today long-term friendships end over an unwillingness to acknowledge that there may be two sides to a divisive issue. Counter arguments are not answered by facts or logic but by ad hominem insults.
Certainty and intolerance of opposing views are the hallmarks of intellectual tyranny that easily morph into political tyranny. If one is certain of the absolute correctness of his views, he often sees no need for the right to dissent or the need for due process. We are seeing that today among many in the “woke” generation who believe that their noble ends justify ignoble means, such as shutting down debate and denying due process to those accused of politically incorrect sins or crimes. The road to political hell is indeed paved with certainty that one’s intentions are good. Or as the great Justice Louis Brandeis taught us a century ago, “the greatest dangers to Liberty lurk in the insidious encroachment by men of zeal but without understanding.”
Today, not only is nuance not welcome in most political dialogue; it is punished. Those deemed guilty of compromising the narrative by introducing nuance are regarded as traitors to the cause and attacked, cancelled, or shunned. Others, who by their nature are open to compromise, are discouraged from participating in the discussion.
CONCLUSION: As a liberal democrat and former National Board Member of the ACLU, I am particularly concerned that the left can no longer be counted on to oppose oppression – when it come from the left. Democrats, liberals, and civil libertarians were on the forefront of opposing the excesses of Republican administrations. I supported them when they did so. But now that the unconstitutional oppression is coming largely from the left, these groups are either silent or complicit. They have shown the world that their opposition to Republican oppression was partisan and tactical rather than principled and neutral. They have lost their credibility as guardians of the Constitution for all. I cannot remain silent in the face of hypocrisy, double standards, and unprincipled partisanship.
Source: Get Trump: The Threat to Civil Liberties, Due Process, and our Constitutional Rule of Law by Alan Dershowitz (2023)
ELECTION INTEGRITY LEGISLATION: To understand why the Biden DOJ is suing both Texas and Georgia for our election laws, you must understand the election system today’s Democrats want to mandate. The very first bill filed in the Nancy Pelosi House was HR1: the first bill filed in Chuck Schumer’s Senate was S1. Both are essentially the same bill: a federal takeover of our election laws that I and many others have dubbed the Corrupt Politicians Act. It would
- Strike down every voter ID law in the country.
- Strike down state prohibitions on ballot harvesting.
- Strike down state restrictions on felons voting.
- Mandate universal mail-in voting.
- Automatically register millions of illegal aliens to vote.
IN SUMMATION: And if and when Republicans take over Congress, I hope and pray that it is just the first step in winning back the White House in 2024 and – critically – restoring integrity to the Department of Justice, the FBI, and our entire legal system. If we value liberty, if we value the rule of law, it is incumbent on us to make that happen.
Source: Justice Corrupted: How the Left Weaponized Our Legal System by Ted Cruz (2022)
The unabbreviated version of the above can be found in the pdf document below.
| america_8l_political_instability_justice_--_segment_8.pdf |