By Alan M. Dershowitz via The Daily Caller News Foundation | August 26, 2023
“Justice, justice you shall pursue,” the Bible commands (Deuteronomy 16:20); and that, in doing justice, one must not “recognize faces.”
Commentators ask why the good book repeats the word justice, since every word is thought to have significance. The most relevant is that there are two kinds of justice: substantive and procedural.
The former relates to making the punishment fit the crime; the latter requires that correct procedures be employed to determine whether a crime has been committed.
The late US Supreme Court Justice Felix Frankfurter once observed that the history of liberty is largely a history of procedural fairness. Our constitution embodies that history by reading “the due process of law.”
Lately, however, many so-called progressives have been willing to ignore procedural safeguards and due process in their campaign to get former President Donald Trump — to misuse the law in an effort to prevent the leading Republican candidate from running against the incumbent candidate for president. In doing so, they are violating the second principle of justice: “Do not recognize faces.” That commandment is the basis for the blindfolded statute of justice.
Some progressives who would ignore procedural safeguards to get Trump acknowledge that this is because they regard him as especially dangerous and therefore undeserving of due process. Special injustice for an unjust man!
But in our system of law, which is based on precedent, there is no such thing as special injustice. Injustice, once practiced against an unjust person, will serve as precedent for deploying it against just persons. As H.L. Menken once observed:
“The trouble about fighting for human freedom is that you have to spend so much of your life defending sons of bitches; for oppressive laws are always aimed at them originally, and oppression must be stopped in the beginning if it is to be stopped at all.”
So, whatever one thinks of Trump, everyone who cares about liberty for all must oppose the weaponization of laws and procedures that are aimed at him, lest the weapons be turned on us.
Among the weapons being improperly aimed at Trump is the RICO indictment in Georgia, which includes several of his lawyers as co-defendants. This ploy has two unfair consequences, if not intentions: to discourage lawyers from defending him; to prevent him from calling his lawyers as defense witnesses; and to open up confidential conversations between Trump and his lawyers. The cases against the lawyers are generally weak, but that does not matter to prosecutors who are out to get Trump and are using his lawyers as means toward that end.
Another weapon is scheduling. They are trying to get convictions in friendly locations before the 2024 elections, and willing to risk reversal on appeal, which would occur only after the election. Accordingly, they are seeking very early trial dates. The prosecutor in Washington, DC has asked for January 2, 2024 — less than five months after the indictment. No case of this complexity and significance has even been tried so quickly. No decent defense lawyer would agree to try a case with so little time to prepare. Yet a group of prominent “get Trump” Republican lawyers has filed a brief supporting that unconstitutional rush to injustice.
These and other “get Trump” lawyers should read the Judeo-Christian commands to do procedural as well as substantive justice, and not to recognize faces. If they follow those wise commands, they will stop trying to “get Trump” or potentially any of us. Instead, they will pursue justice without regard to the face, name or party of the person being investigated and prosecuted.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, and the author most recently of The Price of Principle: Why Integrity Is Worth The Consequences. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute, and is also the host of “The Dershow” podcast. This piece is republished from the Alan Dershowitz Newsletter.
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