When Republican zealots demanded that we “lock up” Hillary Clinton, I defended her against partisan efforts to criminalize political differences. I pointed out that no one had ever been prosecuted for what Clinton was accused of, and that to selectively prosecute her would endanger all of our civil liberties. As a result of defending the civil liberties of Clinton (and hence all Americans), I received hateful e-mails from many partisan Republicans who cared more about destroying Clinton than protecting civil liberties.
Now the shoe is on the other foot. It is partisan Democrats who want to criminalize their political opposition to President Trump. They are eager to stretch elastic criminal statutes to cover the political sins of Trump and his administration, without regard to our civil liberties.
Not surprisingly, my hate mail is now coming from partisan Democrats, who care more about destroying Trump than protecting our civil liberties.
This marginalization of civil liberties is an old story. Most people support civil liberties “for me but not for thee.” Among the first casualty of partisanship is neutral civil liberties. It is only getting worse as partisanship increases. Both sides of this growing extreme are at fault.
I will continue to stand up for civil liberties without regard to which foot the shoe is on. I have no choice because traditional civil liberties groups such as the ACLU have become part of the partisan problem; they, too, subordinate civil liberties to agenda-driven political results.
Civil libertarians must oppose the expansion of already overbroad criminal statutes, without regard to who the target is. Once a vague criminal law is stretched to fit a particular target, it remains stretched and can be applied to any unpopular citizen. It lies around like a loaded gun ready to be pointed in any direction in which the political winds are blowing.
Consider the Logan Act, which makes it a crime for “any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.”
The language of this statute may well cover negotiations conducted by Trump aides before the inauguration, when they were private citizens. The problem is that the Logan Act, which became law 218 years ago (in 1799), has never been used to prosecute anyone. The last time it was invoked was in 1803, in Kentucky, against a farmer who had written a letter. He was indicted, but never prosecuted. It remains on the books as a dead letter because Congress has never bothered to rescind it. Had it been used, our prison cells would be filled with the likes of Jimmy Carter, Ronald Reagan, Jesse Jackson, and many other individuals who, as private citizens, had dealings with foreign leaders.
The most notorious violation of the Logan Act was committed by former president Jimmy Carter, who directly undercut the policy of the US government by advising Yasser Arafat to reject the peace deal offered to the Palestinians in 2000-2001 by then-President Bill Clinton, who was furious with the ex-president for interfering with his policies. But no one suggested indicting Carter for violating the Logan Act — which he plainly did — because everyone knows that the Logan Act is a dead letter that the law prevents from being resurrected by selective prosecution. The same was true when Ronald Reagan had his team negotiate with Iran to keep the American hostages from being freed until Reagan became president and could claim the credit for the release. Jesse Jackson has negotiated prisoner releases with several enemy countries without the approval of the US government.
The reason these Logan Act “violators” can’t be prosecuted is because there is a legal principle called “desuetude.” Under this well-established, if somewhat arcane, principle, a dead letter criminal statute which has not been used for many years is “abrogated” and cannot be selectively resurrected to target a violator. Congress must reenact it, and prosecutors must employ it, for it to return to life. This is a salutary protection against selective prosecution that all civil libertarians should applaud. Yet many Trump haters have argued that the long-dead Logan Act should be resurrected, selectively applied to Trump, and then returned to its crypt where it can continue to rest in peace until the next political enemy comes along.
This is precisely the kind of partisan hypocrisy that is endangering all of our civil liberties. We must resist the temptations of short-term political benefits that come at a heavy cost to our long-term civil liberties.
I propose a test for both zealous Democrats who are determined to get Trump and zealous Republicans who were determined to lock up Clinton. Apply the “golden rule” of justice — the same neutral civil liberties standards equally to both. Do not ask prosecutors to do to one what you would not ask them to do to the other. Don’t try to make facile distinctions that favor your side. Be fair and objective. If you are, you will conclude that it is equally wrong and dangerous to stretch the criminal law to cover the political errors of both Clinton and Trump.
Alan M. Dershowitz is professor emeritus at Harvard Law School and author of “Taking the Stand: My Life in the Law” and “Electile Dysfunction: A Guide for the Unaroused Voter.’’ Follow him on Twitter @AlanDersh.