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Is Politics Being Criminalized?

by Countable | 11.30.17

What’s the story?

Alan Dershowitz, professor emeritus at Harvard Law School, wrote an op-ed for the New York Times on the myriad criminal investigations into politicians—investigations, he says, that point "to a frightening trend that afflicts both Democrats and Republicans: the criminalization of political differences."

The constitutional law scholar says that "we are surrounded on all sides by news of criminal investigations into politicians." He points to Robert Mueller’s investigation into possible collusion between the Trump campaign and Russia, House Republicans’ plans to look into the Obama administration’s handling of Hillary Clinton’s emails, and the Department of Justice considering a special counsel to investigate alleged ties between the Clinton Foundation and the sale of Uranium One.

Dershowitz concedes that government corruption should be prosecuted, Congress should oversee the executive branch, and intelligence agencies have a duty to investigate foreign interference in U.S. elections. "But," he writes, “there is something worrisome about the current frenzy of criminal investigations.”

Why does it matter?

"The framers of our Constitution did not seek to make it easy to convict Americans of crimes," Dershowitz writes. He quotes Benjamin Franklin describing our legal system as preferring that “a hundred guilty persons should escape than that one innocent person should suffer.”

While not always successful (Thomas Jefferson went after Aaron Burr with a vengeance), over time, America’s legal system "made the jailing of political enemies difficult, maintaining a crucial bulwark against autocracy."

But now, Derskowitz argues, that barricade against absolute power has been eroded by

"the use of politically neutral but overly malleable laws on obstruction of justice, corruption, and conspiracy that can be used to prosecute the ethically questionable, but not necessarily criminal, activities of political rivals."

The use of these tactics is not limited to one side of the aisle.

They’ve been used against Republicans, including Rep. Tom DeLay ("whose conviction on corruption charges was overturned after he was forced from office") and Sen. Ted Stevens (“whose conviction on failing to report gifts was…voided — after he had lost his re-election bid.”). Dershowitz also writes that “elastic criminal laws should not be stretched to cover Mr. Trump’s exercise of his constitutionally authorized power”—which include asking the FBI to drop its investigation of Michael Flynn, firing James Comey, or providing classified information to the Russians.

On the other side of the aisle, the Republican National Committee "waged a media war" against Sen. Robert Menendez (D-NJ), arguing that he should resign if a jury were to convict him on corruption charges—which would have allowed Republican governor to appoint a replacement. (On November 16, the federal corruption case ended in a mistrial after jurors were unable to reach a verdict.) In the recent past (and present), Hillary Clinton was the target for a politically-tinged investigation; before that, her husband, President Bill Clinton. “Next up are Bernie Sanders and his wife, who are being investigated at the behest of a Republican Party official in Vermont.”

When it comes to actions that deserve criticism, not criminal convictions:

"The proper place to litigate the wisdom of such actions should be at the ballot box, not in the jury box."

What do you think?

Are we criminalizing political differences? Or are the alleged misdeeds by Trump and Clinton worthy of criminal investigation? Hit Take Action and tell your reps if they need to holster their gavels or bring them down hard. Then share your thoughts below.

—Josh Herman

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(Photo Credit: erhui1979 / iStockphoto)

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