The recent reversal of Sheldon Silver’s corruption conviction by the U.S. Court of Appeals for the Second Circuit confirms the point I’ve been making for months about President Trump: his actions, as controversial as they may be, do not fit the definition of “corruption,” as that vague word is used in federal statutes.
My critics have argued for an extraordinarily broad definition of corruption capable of being expanded to fit nearly everything Trump has done — from firing FBI Director James Comey, to asking him to consider dropping the investigation of General Michael Flynn, to his son’s meeting with Russian surrogates.
{mosads}This is the way the New York Times put it in its story about the court’s narrowing the meaning of corruption in the context of federal criminal law: “There was a time when political corruption might have been described — as a former Supreme Court justice once said of pornography — as something you knew when you saw it.” In other words, it was in the eye of the beholder rather than in a precise statutory definition.
That dangerous time — dangerous because it substituted the rule of individual prosecutors for the rule of law — came to a gradual end over the past several years as the Supreme Court repeatedly cabined the definition of corruption under federal statutes. It ruled that not all political actions that smell or look like corruption can be prosecuted criminally without Congress specifically making such conduct criminal by precisely worded legislation.
This salutary approach to defining overbroad words like corruption was applauded by many civil libertarians and liberals, and especially by criminal defense attorneys who had seen up close how expandable terms like corruption could be, and were being abused by ambitious prosecutors determined to add notches to their belts by convicting dishonest politicians.
Now many of these same civil libertarians, liberals and even defense attorneys have forgotten how dangerous those bad old days were, and are demanding that President Trump and his family members should be prosecuted for corruption under the most expansive definition of corruption, despite recent court rulings narrowing that open-ended term.
“Just this one time, please. Just let us get Trump.” That is what the fair-weather liberals, civil libertarians, and criminal defense lawyers seem to be saying. “Then, we will return to our principles.”
But that’s not the way the law works. There are no exceptions — no “just this one time.” The law operates on precedent. Today’s exception may become tomorrow’s rule. And even if it doesn’t, it creates a precedent for more exceptions, which may be applied to our side of the political aisle, as Republicans tried to do with Hillary Clinton.
H.L. Menken understood why it is so important to defend the rights of those you disagree with and not make exceptions for your political enemies: “The trouble about fighting for human freedom is that you have to spend much of your life defending sons of bitches; for oppressive laws are always aimed at them originally, and oppression must be stopped at the beginning if it is to be stopped at all.”
It is, of course, true that by narrowing the criminal law definition of corruption, some dishonest politicians will fall through the cracks. As one former prosecutor put it: “Prosecutors were concerned from the start that [the Supreme Court’s decisions narrowing the definition of corruption] would allow a lot of reprehensible behavior to go unpunished…”
Another put it this way: Politicians “will learn the language of corruption. It will still be a bribe, but it will fall outside of anything that is technically illegal.” (Emphasis added.) But there is no such animal as “technically illegal.” Under the rule of law, actions and intentions are either legal or illegal. If they are not specifically prohibited by an existing criminal law, they are legal — not technically legal, but simply legal.
For prosecutors who believe that the recent court decisions “may be the beginning of a parade of horribles,” as one former prosecutor put it, there is a democratic remedy: enact legislation that specifically covers the conduct you deem reprehensible and apply it to future cases. That’s the way the rule of law is supposed to operate in a democratic society.
So let’s have one law for all politicians and citizens. Let’s not stretch existing law to fit Donald Trump, Hillary Clinton, or anyone else. The courts have rightly interpreted corruption narrowly. If prosecutors — including the special counsel investigating the Trump administration — want to broaden that term, let them take their case to Congress, not to a grand jury.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, 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.” His new book, “Trumped Up! How Criminalizing Politics is Dangerous to Democracy,” will be published in August. Follow him on Twitter @AlanDersh or Facebook @AlanMDershowitz.
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