Both political parties guilty of weaponizing impeachment

If it is true that President Trump wanted to order the Justice Department to prosecute Hillary Clinton and James Comey, then he not only failed the “shoe on the other foot” test, but nearly shot himself in the foot as well.

President Trump has rightfully railed against weaponizing the criminal justice system against political opponents when he has been the target, yet now it seems he was willing to weaponize the Justice Department against his political opponents. Fortunately, wiser heads prevailed and former White House counsel Donald McGahn persuaded the president that he might be abusing his power if he targeted his political enemies.

{mosads}History shows that past presidents went after their political enemies. Most notably, John Adams ordered the prosecution of members of the opposition party under the notorious Alien and Sedition Acts, Thomas Jefferson demanded the prosecution of Aaron Burr, Abraham Lincoln prosecuted “copperheads,” and John Kennedy, along with his brother who was attorney general, tried to get Roy Cohn. The system worked as most of the political prosecutions failed, but that did not make it right.

The criminal justice system must not be used to even scores, garner political points, or further the interests of one side. Both parties have been guilty of trying to weaponize the criminal justice system. Some Democrats want to investigate and possibly prosecute Ivanka Trump for using her personal email for government business. As the Guardian put it, “what goes around comes around.” The chant of “lock her up” cuts both ways.

Former FBI director James Comey was right in concluding the sloppiness of Hillary Clinton in using a private email server should not be prosecuted. (He was wrong, however, in the way he handled the matter.) Neither should Ivanka Trump be prosecuted for her far less serious violation of rules that many government officials from both parties seem to ignore. There must be one law for both parties and for those in power and out of power. That law should require that criminal prosecution be a last resort against only clear violations of narrowly defined federal statutes.

This means that President Trump should not be accused of “collusion” which is simply not criminal under the law. Nor should he be accused of obstruction of justice for exercising his constitutional authority to fire, pardon, or exercise control over the Justice Department. (Though it may be “wrong” to do so, “wrong” is not the same as “criminal” under the law.) It also means that neither Hillary Clinton nor James Comey should be prosecuted for political sins that do not rise to the level of crimes.

The same is true of impeachment. President Clinton never should have been impeached for his Oval Office misconduct, or his testimony about his sex life. Nor should President Trump be impeached for political sins that do not constitute crimes. Neither should Supreme Court Justice Brett Kavanaugh be impeached for what he is accused of doing as a teenager and his subsequent testimony about it. The threat to impeach is dangerously being thrown around like a baseball after a strikeout.

Representative Maxine Waters wants to impeach Vice President Mike Pence just because she dislikes him and the Democrats have a majority in the House. Some Republicans want to impeach Deputy Attorney General Rod Rosenstein, who should be recused but not impeached, while some Democrats want to impeach Matthew Whitaker because they object to his appointment as acting attorney general.

The promiscuous partisan threat of impeachment will only politicize and delegitimize that important safeguard, and make it difficult to employ when it is really and properly needed. Criminalization of political differences and impeachment are double edged swords. When they are unsheathed against one party, they can and will be deployed against the other party. The shoes are always on both feet. So the “shoe on the other foot” test is not only a moral imperative, it is a pragmatic caution.

The mirror image of the golden rule is that what you do unto others, they will surely do unto you, which is certainly the case in this age of amoral, extremely partisan, anything goes, tit for tat weaponization of our legal system. We need mutual disarmament in the form of a commitment from both sides to resolve political differences through citizens at the ballot box, not through the misuse of our criminal law and impeachment.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. He is the author of “Trumped Up: How Criminalizing Politics is Dangerous to Democracy” and “The Case Against Impeaching Trump.” He is on Twitter @AlanDersh and Facebook @AlanMDershowitz.