Dershowitz Defends Democracy
by
Alan Dershowitz during Senate questioning Wednesday (YouTube screenshot)

The classics are called classic because of their enduring value. A case in point: Plato’s several dialogues in which he records Socrates’ battle against the Sophists.

The Sophists, you might say, were the swamp creatures of their day. They observed the rough and tumble of the political life of Athens’ democracy, and they concluded from their study that the key to life is power, and the key to power was mastering rhetoric — knowing how to say words that get others to do what you want. To quote a master rhetorician in one of the dialogues:

What is there greater than the word which persuades the judges in the courts, or the senators in the council, or the citizens in the assembly, or at any other political meeting? — if you have the power of uttering this word, you will have the physician your slave, and the trainer your slave, and the money-maker of whom you talk will be found to gather treasures, not for himself, but for you who are able to speak and to persuade the multitude.

In his vigorous debates with these lovers of influence, Socrates poses a different ideal — an unselfish devotion to truth and principle, which in politics means seeking the betterment of the general welfare. He asks a Sophist,

Am I to be the physician of the State who will strive and struggle to make the Athenians as good as possible; or am I to be the servant and flatterer of the State?

This is the question facing our politicians and us, the electorate, who delegate some of our sovereign power to them to use for our mutual benefit.

It has been both amusing and painful to watch videos surfacing of politicians who were speaking out at the time of the Clinton impeachment to make the exact opposite point of what they make now in the current trial. It has been refreshing to see at work, however, a true practitioner of the Socratic mode, who has exhibited the kind of consistency and principle that our Constitution deserves — Alan Dershowitz.

In his many years of teaching law at Harvard, he employed the mode of persistent, logic-based questioning to train some of America’s most brilliant students in law. His love for the political freedoms protected by the Constitution spark a constant passion the energy of which is evident in all that he does.

His motivations in the current impeachment trial come not from partisan politics. He has identified and registered as a Democrat and prominently endorsed Obama in both of his presidential runs.

His main concern was evident only a few years ago in his public statements cautioning opponents of Hillary Clinton against trying to use criminal charges to fight their political battles against her. He warned us that use of power in a democracy is almost always controversial and that we must accept the discipline of being able to effect change through public discourse, through the slow and dedicated work needed to change peoples’ minds on a large scale.

As any student of law knows, we are not far removed in time or location from settling our political controversies through force. The losers have had their head put on the chopping block or the guillotine or have been offered as a target for the firing squad or the KGB pistol. Under the threat of criminalizing politics, not one of our freedoms will survive, for supporting the wrong cause even in writing or in speech would later — but more likely sooner — become criminal as well.

Dershowitz did not support Trump in the 2016 election. But even before the inauguration, passionate calls to impeach Trump were heard, and soon Dershowitz began to teach on the same theme again.

The theme is consistent. The Framers deliberately set a very high bar for impeachment by rejecting “maladministration” as the criterion for this process and accepting treason, bribery, and high crimes and misdemeanors instead. Their point was that this process should not be like a Parliamentary vote of no confidence, in which an administration is turned out for losing policy support, but rather only for crimes against the law. And not just any law, but only laws whose violation would directly and gravely injure our political system.

Thus, the Framers reserved impeachment only for the most serious of violations of core laws, well known and gravely important for the ongoing trust of citizens in their government.

In the midst of this bombardment of modern sophistry that has been the substance of so much of this long and grinding effort to remove Donald Trump from office, I had the pleasure of watching Dershowitz on TV as part of the president’s defense team. Speaking from the well of the Senate, he called on the senators to see that their most compelling duty is to save American democracy for our future generations. Articles of impeachment that never reference defined law are not worthy of a democracy. Vigorous exercise of power by our political opponents always seems abusive. Our democratic discipline is to translate our feelings about these matters into causes that will command the minds, hearts, and votes of our fellow citizens and remedy the problem at the ballot box.

Prosecution under vague and general terms was the weapon of tyrants in our English–American law history. The long fight for democracy insisted on removing such weapons from the political fray. From the Magna Carta to the Petition of Right to the Bill of Rights, we have discarded such tools as the general warrant, the bill of attainder, and laws written after the fact to target retroactively behavior we don’t like. That we must not instantly be gratified in our political passions is the cost of freedom.

On Wednesday, Dershowitz spoke a classic truth. Socrates sacrificed his life for it. Everyone who has fought for this country has risked his or her life for that truth. Hearing Dershowitz speak out to the future about the principles of our democracy was bracing and comforting all at once. We must reject the new sophistry and not be of those who flatter the state to grab our power. Let us hear the call and once again commit to our great principles.

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