Alan Dershowitz: A widespread Double Standard is eroding the Rule of Law

“Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear.” — President Harry S. Truman

Important Takeaways:

  • Double Standard by Civil Libertarians against Trump Endangers the Rule of Law
  • The American Civil Liberties Union, which has repeatedly challenged the constitutionality and applicability of the Espionage Act to anti-government activities by left-wing radicals, is strangely silent when the same overbroad law is deployed against a political figure whose politics they deplore.
  • Then there is the manner by which Trump loyalists have been treated when they were indicted. Several have been arrested, handcuffed and shackled, despite not having been charged with crimes of violence and despite the absence of evidence that they were planning to flee… [M]ost other comparable defendants are simply notified of the charges and ordered to appear in court. Yet despite this apparent double standard, the left has been silent.
  • U.S. Attorney General Merrick Garland commendably stated that the Justice Department is dedicated to the “evenhanded application of the law.” But recent applications of the law suggest otherwise.
  • Perhaps the most glaring manifestation of the double standard currently at work is the different approach taken to the alleged mishandling of classified material by Trump, on the one hand, and former presidential candidate Hillary Clinton, on the other hand. No wide-ranging search warrants were sought for Clinton’s home, where private servers were apparently kept and subpoenaed material even possibly destroyed.
  • According to Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are:
    • Publicly promulgated
    • Equally enforced
    • Independently adjudicated
    • And consistent with international human rights principles.

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Biden’s Justice Dept. may defend Trump in Capitol riot lawsuits

By Peter Eisler and Joseph Tanfani

WASHINGTON (Reuters) – Former U.S. President Donald Trump may have an unlikely ally to defend him against lawsuits alleging he incited the U.S. Capitol insurrection: President Joe Biden’s Justice Department.

The Biden administration paved the way for that possibility, say constitutional scholars and lawyers in the cases, by arguing in an unrelated defamation case against Trump that presidents enjoy sweeping immunity for their comments while in office – and the right to a defense by government lawyers. Biden’s Justice Department used that rationale in a surprise decision this month to continue defending Trump in a case filed by E. Jean Carroll, who contends Trump raped her 25 years ago and then lied about it while in office, defaming her.

That decision reaffirms the position the department took under the Trump administration. And it has profound implications for several ongoing lawsuits, including one filed by two U.S. Capitol Police officers seeking to hold Trump liable for injuries they suffered defending the building in the Jan. 6 attack.

Attorney Philip Andonian said he fears the Justice Department, under the same legal rationale, will also defend Trump in a case Andonian is pursuing on behalf of U.S. Representative Eric Swalwell, a California Democrat. Swalwell alleges Trump incited the deadly Jan. 6 riot in an effort to stop Congress from performing its duty to certify Biden as the election winner. Andonian called the logic behind the department’s decision to defend Trump against Carroll’s defamation suit “alarming.”

The Justice Department appears to put no limits on immunity for speech by a sitting president on any matter considered “of public concern,” Andonian said.

The Justice Department declined to comment on whether it would use the same argument as a basis for intervening in the other lawsuits Trump faces. The White House did not respond to a request for comment but has previously said it had no role in the department’s decision on whether to defend Trump in the Carroll case or others.

Trump faces more than a dozen active investigations and lawsuits involving a wide range of matters, including sexual misconduct allegations, financial disputes and government probes into his business dealings and his efforts to overturn the 2020 election. But the Justice Department’s assertion of presidential immunity in the Carroll case would only be relevant to other cases involving his statements or actions while in office.

The Justice Department laid out its rationale for defending Trump in a June 7 brief in the Carroll case. After Carroll, a former magazine writer, wrote in 2019 that Trump raped her, Trump – while in office – accused her of lying and said he’d never met her. Carroll is among about two dozen women who have accused Trump of sexual misconduct. The brief argues that Trump, like any president, is covered by federal laws, including the Westfall Act, that protect federal employees from being sued for actions taken as part of their jobs.

Although Trump’s remarks were “without question unnecessary and inappropriate,” the brief said, he was acting within the scope of his office when he made them. “Elected officials can – and often must – address allegations that inspire doubt about their suitability for office,” the argument says. “Speaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job.”


One prominent constitutional scholar characterized the department’s position in the Carroll case as a blunder that will be difficult to undo.

“It would be very difficult for the Justice Department to change course now,” said Laurence Tribe, a Harvard University constitutional law professor and a frequent critic of Trump. “The Titanic is aimed at the iceberg.”

Tribe and other critics of the department’s position say it fails to draw obvious distinctions between a president’s official conduct and matters that clearly fall outside the duties of the office. When a president says or does something illegal, they say, it does not warrant a taxpayer-financed defense by government lawyers.

Tribe served as a legal adviser for the House of Representatives’ second impeachment of Trump, in which the former president was accused – but eventually acquitted – of trying to overturn legitimate election results to retain presidential power. Tribe said it would be “outrageous” for the department to defend Trump against the lawsuits related to the U.S. Capitol riots “on the basis that fomenting a violent insurrection, as charged in those suits, fell within the president’s job description.”

Trump has denied any responsibility for the violence at the Capitol. His lawyers have said he was making political arguments, protected by the First Amendment, and not inciting people to riot.

Jesse Binnall – a private lawyer defending Trump in the Capitol Police case, the Swalwell case and at least two other ongoing suits – declined to comment on whether he will seek the department’s intervention on Trump’s behalf in any of those matters. Such a request would require the Justice Department to take an official position.

Binnall has echoed the Justice Department’s immunity argument in briefs filed for some of those cases, but he so far has not directly requested that the department intervene in any of them.

If the Justice Department does end up defending Trump in any of the other cases pending against him, he still would be able to retain his private counsel, allowing him to protect his own interests if they diverge from those of the government.


While Trump was president, the Justice Department argued in the Carroll case that federal law gave him a “broad grant of immunity” against her lawsuit, adding that he was protected because he spoke about her in his role as president. A federal district court rejected that position in October, and the department filed an appeal in the waning days of Trump’s presidency. If the Justice Department wins on appeal, that would effectively end Carroll’s case against Trump.

Carroll’s lawyer, Roberta A. Kaplan, said it was “shocking” that the department would maintain the same argument under U.S. Attorney General Merrick Garland, who was appointed by Biden after the appeal was filed.

In testimony before Congress, Garland defended the position by saying the department had a duty to follow the law rather than to protect any administration. “Sometimes it means we have to make a decision about the law that we never would have made and that we strongly disagree with as a matter of policy,” he said.

The Justice Department’s appeal in the Carroll case is pending before the 2nd U.S. Circuit Court of Appeals. The outcome could have implications for at least four other federal lawsuits pending against Trump. Three of them seek to hold Trump liable for remarks in a speech on Jan. 6 shortly before the Capitol riots. They include the case filed by injured Capitol Police officers, as well as the cases filed by Representative Swalwell and U.S. Representative Bennie Thompson, a Mississippi Democrat. Thompson alleges that Trump violated federal law by inciting his supporters to block Congress from executing its official duties.

The fourth case was filed by the Michigan Welfare Rights Organization, an advocacy group for low-income people. The lawsuit claims Trump disenfranchised Black voters by trying overturn the results in Detroit, a majority Black city, after the 2020 election.

Andonian, the lawyer in Congressman Swalwell’s suit against Trump, said he fully expects that Trump’s lawyers now will adopt the Justice Department’s reasoning to argue that the former president was speaking on “matters of public concern” in his Jan. 6 speech. Trump that day continued his false claims that the election had been stolen from him through voter fraud; assailed Vice President Mike Pence for refusing to stop Congress from certifying Biden’s win; and called for his supporters to march to the Capitol.

Andonian and other attorneys argue there’s a legal distinction between Trump’s attacks on Carroll and his incendiary speeches seeking to reverse his election loss.

Ben Berwick, a lawyer representing the Capitol police officers, said that Trump’s appearance at the Jan. 6 gathering just before the Capitol insurrection amounted to a “campaign rally” unrelated to his official duties. That’s a different setting, he said, than the presidential news conference where Trump made the statements about Carroll.

“He is effectively acting as a candidate,” Berwick said. “He has no official role in the certification of electoral votes.”

Joseph Sellers, an attorney representing Congressman Thompson in his suit against Trump, concurred that Trump had stepped well beyond the cover of presidential immunity.

“I don’t think anyone would think it’s within the scope of the president’s legitimate duties to encourage people to interfere with the functioning of another branch of government,” Sellers said. “He was promoting an insurrection and a riot.”

(Reporting by Peter Eisler and Joseph Tanfani; additional reporting by Disha Raychaudhuri and Rick Linsk; editing by Jason Szep and Brian Thevenot.)

Airlines, unions urge U.S. to prosecute ‘egregious onboard conduct’

By David Shepardson

WASHINGTON (Reuters) -A group representing major U.S. airlines and aviation unions on Monday wrote to U.S. Attorney General Merrick Garland asking the Justice Department to crack down on the growing number of disruptive and violent air passengers.

The Justice Department did not immediately comment on the letter, first reported by Reuters.

The letter from Airlines for America, which represents American Airlines, Delta Air Lines, United Airlines, Southwest Airlines and others, along with major unions said the “incidents pose a safety and security threat to our passengers and employees, and we respectfully request the (Justice Department) commit to the full and public prosecution of onboard acts of violence.”

The head of the Federal Aviation Administration (FAA), Steve Dickson, in January imposed a zero-tolerance order on passenger disturbances aboard airplanes after supporters of former U.S. President Donald Trump were disruptive on some flights around the time of a Jan. 6 U.S. Capitol attack.

Monday’s letter added that the airlines and unions hope the Justice Department “will commit to taking action, along with coordination with the FAA, to ensure that egregious onboard conduct is fully and criminally prosecuted, sending a strong public message of deterrence, safety and security.”

The letter to Garland said that since the FAA’s zero- tolerance policy was announced, the agency has received more than 3,039 reports of unruly behavior and has opened 465 investigations into assaults, threats of assault or interference with crew members.

More than 2,000 cases included passengers refusing to wear face masks as required on all airplanes.

The U.S. Transportation Security Administration (TSA) on April 30 extended a federal face mask mandate on airplanes and in airports through Sept. 13.

(Reporting by David Shepardson, Editing by Franklin Paul and Howard Goller)

U.S. Attorney General Garland expands resources to combat hate crimes

By Sarah N. Lynch

WASHINGTON (Reuters) – U.S. Attorney General Merrick Garland on Thursday directed the Justice Department to expand funding and other resources to states and municipalities to help track and investigate hate crimes, and ordered prosecutors to step up both criminal and civil investigations into hate incidents.

In a memo to Justice Department employees, Garland said that Associate Attorney General Vanita Gupta will assign someone to coordinate and serve as a central “hub” on hate crimes by working with prosecutors, law enforcement and community groups to ensure there are adequate resources to investigate and track hate crimes.

“Hate crimes and other bias-related incidents instill fear across entire communities and undermine the principles upon which our democracy stands,” Garland said in his memo.

“All people in this country should be able to live without fear of being attacked or harassed because of where they are from, what they look like, whom they love, or how they worship.”

Garland’s memo comes at a time when Asian Americans have faced an increase in attacks and racist encounters since the start of the coronavirus pandemic, when then-President Donald Trump first started blaming the virus on China.

Earlier this month, President Joe Biden signed into law the COVID-19 Hate Crimes Act, which designates a Justice Department employee to expedite a review of hate crimes reported to police during the pandemic.

In March, Garland announced he was launching a 30-day expedited review to explore ways the department could improve efforts to prosecute hate crimes and collect better data.

Thursday’s memo implements some requirements in the law, as well as some recommendations from the prior review.

Garland’s memo on Thursday also designates an official who will be tasked with expediting the review of hate crimes and calls on U.S. Attorneys offices to assign local criminal and civil prosecutors to serve as civil rights coordinators.

“Acts of hate do not always rise to the level of federal hate crimes, but such hate incidents still have a destructive effect on our communities. Federal civil statutes sometimes provide remedies when federal hate crime statutes do not,” Garland wrote.

(Reporting by Sarah N. Lynch; Editing by Marguerita Choy)