OPINION | Dershowitz: The partisan shoe is on the other foot

Had Hillary Clinton been elected president, Republican partisans would be doing and saying about President Clinton what Democrat partisans are now saying about President Trump.

There would be shouts of “Lock her up!” as there were even before the election. There would be efforts to reopen the email investigation, as President Trump is now tweeting. There would be demands to appoint a special counsel. There would be claims that foreign contributions to the Clinton foundation and other entities were “emoluments.” 

{mosads}If there were a D.C. grand jury investigating Clinton, there would be efforts by the prosecution to move it to a less-overwhelmingly Democratic venue, like Virginia. There would be arguments that Bill Clinton obstructed justice by initiating a conversation with then-Attorney General Lynch in her airplane and that Lynch tried to influence the FBI director to refer to the email investigation as a “matter.” 

If President Hillary Clinton had fired FBI director James Comey — as she might well have done — there would have been allegations of a cover up. There would be calls for her impeachment and prosecution.

My partisan Democrat friends would be appalled at these efforts to undo the election of their candidate. They would be railing against expanding the criminal law to target a political opponent. They would be dismissing the emoluments argument as the stretch that it is.

They would be complaining about the tactical advantage the prosecutor would obtain by moving the case from D.C. to Virginia. They would be insisting that President Clinton had every right to fire the director of the FBI and that exercising such a right cannot be an obstruction of justice. 

In other words, Democratic partisans would be making exactly the same arguments in relation to a President Clinton than I am now making in relation to President Trump.

I would be joining them in making these arguments, because they are the right arguments for any civil libertarian to make regardless of which foot the shoe is on. But for partisans on both sides, everything depends on which foot the shoe is on. They remind me of my immigrant grandmother. When I would excitedly announce that the Brooklyn Dodgers had won a ballgame, she would ask rhetorically, “Yeah, but is it good or bad for the Jews?”

For her, everything was measured by its influence on the Jews. Similarly today, partisans measure everything by whether it’s good or bad for the Democrats or Republicans — for Clinton or Trump.

Now that it is President Trump who is being targeted, my partisan Democratic friends are vociferously rejecting these neutral civil liberties arguments, because they do not now serve their partisan political interests. Nor do they seem embarrassed by their apparent hypocrisy and double standards. Hypocrisy is a small price to pay for partisan political victories.

For me, the primary test for whether an argument is principled or partisan is “the shoe on the other foot” test. I employed this test in my book “Supreme Injustice,” in which I criticized the Supreme Court justices who voted to stop the recount in Bush v. Gore, thus handing the election to President Bush.

I examined the past opinion of the majority justices and showed that if the shoe had been on the other foot — if it were Bush who was seeking the recount — the justices who voted to stop it would have almost certainly voted the other way. These Republican partisan justices failed the “shoe on the other foot” test. My partisan Democratic friends applauded the “shoe on the other foot” test when it favored the Democrats. Now, these partisans are failing the very same test.

The time has come for all Americans who believe in enduring principles of morality and justice to insist on consistency. Ralph Waldo Emerson was wrong when he demeaned “foolish consistency” as “the hobgoblin of little minds, adored by little statesmen and philosophers and divines.”

Consistency of principles is neither foolish nor small-minded. It is the essence of any moral system. Principled consistency may be difficult to achieve, especially in our current hyper-partisan atmosphere. But if we are ever to end the partisan bickering and name-calling that is coarsening dialogue and making reasoned compromise impossible, we must insist on a single standard of legality and morality that applies equally to Democrats and Republicans. We are far from that in the current shouting match in which each side calls the other “criminal,” “racist” or worse.

We must declare an armistice in this divisive war of words and agree to do unto your political opponents what you would have your political opponents do unto you. That golden rule of consistency should be as applicable to political debate as it is to personal morality.

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 Lawand 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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