Now that Hunter Biden and President Trump have both been convicted of crimes with which they never should have been charged, maybe it’s time for a truce. The weaponization of the criminal justice system has now targeted the son of a prominent Democrat and a prominent Republican. The time has come for mutual disarmament.
Let’s begin with an undisputed fact. Neither Biden nor Trump would ever have been prosecuted, but for their names. The Bible commands judges and prosecutors not to “recognize faces.” In other words, no one should be tried because of who they are, rather than because of what they have done.
The blindfolded statue of justice represents this age-old commandment. Yet the recent politicization of our criminal justice system has removed the blindfold in many cases against high-profile defendants on both sides of the aisle.
Read: Alan Dershowitz Says ‘Best Thing’ That Could Happen For Trump Is Hunter Biden Acquittal
Unless a cease fire is agreed upon by both sides the legal bloodletting will continue. Each side will seek to justify their selective prosecution with the cliché that “no one is above the law,” and that anyone who violates any criminal statute should be prosecuted. Only that’s not the way the law works in practice.
As Justice Robert Jackson observed many years ago: “With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.”
He added that “in such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.” Or as the tyrannical head of Stalin’s KGB told his boss: “show me the man, and I will find you the crime.”
Today, virtually anyone who runs a complex business can plausibly be charged with some violation of some arcane statute or regulation. This was demonstrated by the legal contortions employed by the Manhattan district attorney Alvin Bragg to resurrect an expired misdemeanor and magically turn into a timely felony.
Read: Alan Dershowitz: Will Judge Merchan Sentence Trump To Prison?
It was also demonstrated by the special counsel’s decision to employ a rarely used gun application law against someone who never even used the gun.
The real law is found not in the compilation of published rules alone; it is largely a function of prosecutorial discretion, as demonstrated by these cases of selective prosecution.
Laws that are selectively enforced against political targets do not show that no one is above the law. They show that some people may be below the law — that is, denied the protection of neutral application of the law by nonpolitical prosecutors.
Trump was prosecuted by a Democratic district attorney in order to influence the election. Then Biden had to be subjected to a special prosecutor to avoid the election being influenced by a perception of unfairness.
Previously, Trump was unconstitutionally impeached by a Democratically controlled House for alleged acts that did not come within the criteria for impeachment.
Then, the homeland security secretary, Alejandro Mayorkas, was unconstitutionally impeached. The score is now essentially tied. It is time to end this tit-for-tat misuse of the legal system.
Alan Dershowitz is a professor emeritus at Harvard Law School and author of “War Against the Jews: How to End Hamas Barbarism.” Andrew Stein, a Democrat, served as New York City Council president, 1986-94.
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