Liberal law professor and Democrat, Alan Dershowitz, writing on the latest Trump Indictment, notes that: “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,”:
As I have said for years now, when the leading candidate against the incumbent president is prosecuted, especially at the urging of the incumbent president, the case against him must be bulletproof, airtight and beyond any reasonable doubt. To paraphrase Mr. Biden, the prosecutor in such a case should act more “like a ponderous judge” and less like a zealous prosecutor. He should lean over backwards to assure not only that justice is being done, but also that it is seen to be done by all reasonable people.
The only alleged crime that meets this high bar is the indictment in Florida based on the videotape of Mr. Trump waving classified material in front of journalists and admitting that he had not declassified them and that they are still secret. This piece of evidence is indeed a smoking gun, but the crime itself is not nearly as serious as the ones charged in the January 6 indictment. The remaining indictments — the one at New York City and the current one in DC — are highly questionable and certainly subject to criticism by reasonable and objective people.
The essence of a Banana Republic — the description applies equally to some Eastern European and Asian authoritarian regimes, as it does to South American — is the criminal prosecution of political opponents by incumbent leaders. We are not a Banana Republic and we are not close to becoming one. Yet this most recent indictment, following Mr. Biden’s public demand for the prosecution of his political opponent, brings us one step closer to banana land.
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. 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. 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 Indictments]
And in an earlier article on the January 6th indictment and its implications in regards to freedom of speech:
The bottom line of the recent Trump indictment alleges that he knew or should have known that he lost the election fair and square, and that his actions in challenging the result were therefore corrupt and unlawful. The problem with the indictment is that the Supreme Court has repeatedly held under the First Amendment that there’s no such thing as a false opinion. Every American, and especially politicians, have the right to be wrong about their opinions. They also have the right to express their false opinions, at least as long as they honestly believe they are true. Imagine what the world would look like if every politician who told a fib in order to get elected were to be prosecuted and imprisoned. Our legislative sessions would have to be held in the Allenwood prison rather than in the halls of Congress. Lying has long been endemic in politics. That’s why we honour George Washington and Abraham Lincoln as truth-tellers among the array of politicians who don’t meet that standard. Indeed, this indictment itself fails to meet the standard of honesty that it requires of Donald Trump. In describing his speech of December 6, this is what it says: “Finally, after exhorting that ‘we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore,’ the defendant directed the people in front of him to head to the Capitol, suggested he was going with them, and told them to give members of Congress ‘the kind of pride and boldness that they need to take back our country’.” Yet the indictment omits two key words from that speech – “peacefully” and “patriotically” – which suggest that the speech itself was protected advocacy under the First Amendment rather than unlawful incitement. A lie by omission is as serious as a lie by commission, especially in the context of a legal document such as an indictment.
All in all, this indictment does not seem to serve the interests of non-partisan justice. It appears to be yet another manifestation of the hen an attorney general authorises the prosecution of his president’s main political opponent in an upcoming election, the case must be so strong that it leaves no doubt as to its non-partisan credibility. It should meet what I call the “Nixon standard”. The case against Richard Nixon was so strong that members of his own party and independents supported his impeachment and possible prosecution. That standard does not seem to have been met in this case. [The Trump indictment fails the Nixon test]