When I taught law at Harvard, I always gave a final exam that included what is called “an issue spotter.’’ I presented a complex hypothetical case, often based on a real one, and asked the students to stretch their imaginations to come up with every conceivable crime that might be charged and every conceivable defense that might be offered. That was the first part of the question, and most students excelled at spotting the relevant issues. In the second part of the question, I asked them to use their judgment in deciding which, if any, of these crimes could realistically be charged and which defenses could realistically be offered. It was this part of the question that separated the very good lawyers, which included the vast majority of the students, from the truly exceptional ones. To be a great lawyer requires the exercise of judgment, subtlety, nuance, and an ability to predict what the courts will do.
I am reminded of these exams when I read op-eds and listen to TV appearances, some by my former excellent students, that apply only the first part of the test to the current legal situations confronting the Trump administration. These smart lawyers try to come up with every conceivable statute that an imaginative lawyer could identify, ranging from the Logan Act (which hasn’t been used in 215 years), to treason (which is narrowly defined in the Constitution), to obstruction of justice, to witness tampering, to violations of campaign financing laws (which are so vague and open-ended that half of America’s politicians would be in jail if they were broadly applied).
I have to admit that these lawyers show great imagination – imagination they rightly condemn when Republications play the same game, accusing Hillary Clinton of espionage and other open-ended crimes. But they show scant judgment or nuance in distinguishing what might be possible based on the broadest interpretation of the language and what is realistic based on court precedents, prosecutorial discretion, equal application, and simple justice. It is not that these lawyers aren’t brilliant. They are. It’s not their intellect I am questioning. It is the double standard they seem to be applying to Donald Trump and Hillary Clinton, in particular, and to the opposing party and their party, in general. The one factor that must never enter into prosecutorial judgment is partisanship, regardless how strong and even legitimate the negative feelings are about a political opponent.
It is tempting, because it is so easy, to comb the statute books in an effort to identify every conceivable crime that might be applicable to any given situation. As Harvey Silverglate wrote in his superb book, “Three Felonies a Day,’’ prosecutors play the following game: One names a well-known and controversial person, and the others search through the statute books to figure out which three felonies they committed on a given day. That is what prosecutors do when they are playing games. It’s not supposed to be what they do when they destroy a person’s life by indicting them.
Former FBI director James Comey understood the role of a prosecutor when he concluded that “there is evidence of potential violations of the statutes regarding the handling of classified information’’ by Clinton. But after engaging in the first part of the criminal law exam exercise, he turned to the second part, involving judgment and concluded that “our judgment is that no reasonable prosecutor would bring such a case.’’ Silverglate shows that our criminal statute books are overloaded with crimes that can be expanded to fit any politician or businessman or any controversial figure.
Comey’s conclusion generated outcries of protest from Republican partisans who had played the same game that Democratic partisans are now playing when they demanded that if there is evidence of potential violations of the statutes, then a prosecution must be brought. But these zealots were wrong and Comey was right. (He was not right in making public his evaluation of the evidence and his finding that Clinton was “extremely careless [in her] handling of very sensitive, highly classified information.’’ But that is a different matter).
Democratic partisans, who were happy with Comey’s conclusion not to prosecute Clinton, should be applying the same standards to Trump. No reasonable prosecutor would bring a charge of treason, tampering with witnesses, obstruction of justice, or violating campaign laws, based on the evidence that is now available. (It is possible that evidence may emerge of such crime. But based on what we now know, that is highly unlikely.)
So, let’s not treat the criminal justice system as a law school exam in which students are asked to catalog every possible violation of our accordion-like laws. But if we insist on doing so, let’s at least include the second part of the exam question: showing judgment and nuance in deciding whether to bring a case even if there is “evidence of potential violations of the statutes.’’ The rule of law cannot survive a double standard. What is good for the goose must be good for the gander, and what we applauded with regard to Hillary Clinton we must not condemn with regard to Donald Trump.
Alan M. Dershowitz is professor emeritus at Harvard Law School and author of “Electile Dysfunction: A Guide for the Unaroused Voter.’’ His new book, “Trumped up! How Criminalizing Politics Is Dangerous to Democracy,’’ will be published in August.