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OPINION: Trump’s bluff: Perfectly legal

The Hill logo The Hill 6/23/2017 Alan M. Dershowitz, opinion contributor
OPINION: Trump’s bluff: Perfectly legal © Provided by The Hill OPINION: Trump’s bluff: Perfectly legal

Editor’s note: The opinions in this article are the author’s, as published by our content partner, and do not necessarily represent the views of MSN or Microsoft.

Now that President Trump has tweeted that he didn't tape James Comey, the anti-Trump zealots are accusing him of witness intimidation.

This is most the absurd of the many absurd charges leveled against Trump by those out to get him without regard to the law.

Trump's bluff was calculated to get Comey to tell the truth. How can that be witness intimidation?  If it were, Abraham Lincoln would have gone to prison rather than the White House.  As a young lawyer, he, too, bluffed a witness into telling the truth. In one of his most famous murder cases, a witness testified that he saw Lincoln's client kill the victim. The time it occurred was at night, so the witness testified that he was able to see the crime because there was a full moon. Lincoln then handed the witness an almanac and asked him to turn to the date in question. The almanac showed that there was no moon on that night, and the witness broke down and admitted that he had not seen the crime. The defendant was acquitted. Lincoln later acknowledged that he had deliberately fooled the witness into telling the truth by handing him an almanac for the wrong year. The correct year's almanac indeed showed a full moon.

I don't want to compare myself to Lincoln, but I, too, used a similar bluff involving tapes when I was a young lawyer back in the 1970s.  I was cross-examining a police officer who was lying through his teeth about what he had said to my client.  Pretending that my client had recorded the crucial conversation, I read him what appeared to him to be a transcript of the tape.  In fact it was only a transcript of my client's best recollection about what he had been told.  Believing there was a tape the witness changed his testimony and admitted making the crucial statement to my client.  As a result we won the case.

Prosecutors frequently bluff about the quality and quantity of the evidence they have against a defendant in order to get him to plead guilty or to become a cooperating witness.

What President Trump did was no different from what prosecutors, defense attorneys, policemen, FBI agents and others do every day in an effort to elicit truthful testimony from mendacious witnesses.  But in today's hyper-partisan climate, those out to get President Trump will concoct "crimes" out of the most innocent behavior.  This really illustrates how far things have gone in partisan efforts to criminalize political differences.

This must stop, because it is endangering democracy.  The idea of turning every controversial action into a crime is more typical of tyrannies than countries committed to the rule of law.  The exploitation of open-ended statutes invites tyrants to selectively prosecute their political enemies.  What partisan zealots are trying to do to Donald Trump is more reminiscent of  Putin, Erdogan, Castro and Chavez, than it is of our legal system.

I understand how strongly some people feel about Donald Trump being president.  Many Republicans felt the same way about Bill Clinton and Barack Obama, and they would have felt even more strongly against Hillary Clinton had she been elected president.  But zealotry on one side does not justify zealotry on the other.  We must declare an armistice against using our criminal  justice system as a political weapon in what has become a zero-sum bloodsport.  Criticize President Trump for bluffing, if you wish though I find absolutely nothing wrong with it, but don't try to turn what you don't like into a crime unless you can find a clear and specific statute and precedent in support of your position.

Remember that today's use of the criminal law against a president you don't like may become a precedent to using a criminal law against a president you do like.  Even worse it may become a precedent against you. So be careful what you wish for.

Alan M. Dershowitz, 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. @AlanDersh @AlanMDershowitz

Views of contributors are their own and not the views of The Hill.

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