Government

Alan Dershowitz Doesn't Understand Why Trump And Hillary Received Different Treatment Besides All The Facts And Law Being Different

There's not being in the same ballpark and then there's not playing the same sport.

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Candidates Hillary Clinton And Donald Trump Hold Second Presidential Debate At Washington University

(Photo by Win McNamee/Getty Images)

Alan Dershowitz used the ample free time afforded by the fact that no one on Martha’s Vineyard wants anything to do with him to write a lengthy “Defense of ‘Whataboutism‘” for the Wall Street Journal. To Dershowitz’s mind, the rule of law requires whataboutism and, specifically, questioning why authorities are more aggressive when two different cases involve two very different fact and legal patterns.

It truly is a mystery!

Why was the matter handled so differently from the prior investigations of Sandy Berger and Hillary Clinton, who were also suspected of mishandling classified material?

While Dershowitz may think “whataboutism” is critical to equal protection of the law, a much more critical component is “actually reading the statutes.” Berger pleaded guilty to a violation of 18 U.S.C. §1924, the law against possessing government documents you shouldn’t have. Hillary was never charged but the allegations against her also revolved around §1924.

The unsealed Mar-a-Lago warrant reveals that Trump was pointedly NOT searched on suspicion of violating §1924. The warrant states that the DOJ is investigating possible violations of 18 U.S.C. §§ 793, 2071 , and 1519 — all much more serious crimes than §1924.

So at least part of the reason the matter was “handled so differently” is akin to asking why cops don’t approach grand theft auto and shoplifting the same way even though both suspects are “suspected of mishandling someone else’s material.”

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The facts, especially the degrees of culpability, may be different; and if so, that would provide a good answer to the “what about” question. But if the facts are similar and the treatment is different, Americans are entitled to ask whether this constitutes the even application of the law that Mr. Garland promised.

Just marvel in that paragraph. Sure these cases involve different laws and there’s no reason to believe the facts are the same but if they WERE the same and the DOJ in that hypothetical scenario treated the two cases differently… well, that would be something!

This is Eli Cash self-parody at this point.

If Hillary Clinton kept nuclear secrets at home in violation of the Espionage Act and then sent an attorney to aver to the Department of Justice that she had returned all the documents and didn’t then we could entertain Dershowitz’s bizarre thought experiment.

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But that’s not what then-FBI Director Jim Comey told us. He told us Clinton commingled work stuff on a private server that she’d boneheadedly set up so she could keep her personal emails complaining about politics out of the national archives. This was a real and serious problem and it was a problem even if Comey did not see it rising to the level of criminality… but there’s still zero comparison to the allegations against Trump.

Indeed, even if her actions did rise to the level of violating §1924 there still wouldn’t be any fair comparison.

Hell, even if Trump’s case was about §1924 all of these matters would still be handled differently because when Berger and Clinton were accused of violating that statute it was a misdemeanor. Trump converted it to a felony with a five-year sentence meaning the DOJ would treat these cases differently even if the facts were similar because the sentence involved is now five times more serious.

But until Mr. Garland fully and specifically answers the hard questions about what appears to be unequal application of rules and practices, “what about her emails?” will be a pertinent question.

He calls on the Attorney General to publicly comment on an ongoing investigation in an article about the importance of approaching all cases even-handedly. Just wow.

Look, nothing “appears” to be unequal unless you’re committed to misleading the public about the laws at issue. The facts involved are very different and no matter how broadly you can colloquially categorize them all as “mishandling classified material” the law makes sharp distinctions in all of these statutes for a reason.

Someone in Martha’s Vineyard needs to suck it up and take him for a bike ride or something so he doesn’t fill his days writing this claptrap.

‘But Her Emails’? A Defense of ‘Whataboutism’ [Wall Street Journal]

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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