Alan Dershowitz doesn’t understand why Trump and Hillary received different treatment on top of all the facts and the law being different

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Alan Dershowitz took advantage of the ample free time afforded by the fact that no one on Martha’s Vineyard wants anything to do with him to write a lengthy “Defense of ‘Whataboutism'” for the Wall Street Journal. In Dershowitz’s mind, the rule of law requires doing anything and, more specifically, asking why authorities are more aggressive when two different cases involve two very different factual and legal models.

It really is a mystery!

Why was the case handled so differently from previous investigations of Sandy Berger and Hillary Clinton, who were also suspected of mishandling classified documents?

While Dershowitz may think “whataboutism” is essential to equal protection of the law, much more critical is “actually reading the statutes.” Berger pleaded guilty to a violation of 18 USC §1924, the law against possessing government documents you shouldn’t have. Hillary was never charged, but the allegations against her also revolved around §1924.

Mar-a-Lago’s unsealed warrant reveals that Trump was NOT ostensibly searched on suspicion of violating §1924. The warrant says the DOJ is investigating possible violations of 18 USC §§ 793, 2071, and 1519 — all far more serious crimes than §1924.

So at least part of the reason the case was “handled so differently” comes down to wondering why cops don’t approach grand auto theft and shoplifting the same way, even though the two suspects are “suspected of mishandling someone else’s material”.

The facts, especially the degrees of guilt, may be different; and if so, that would provide a good answer to the “what about” question. But if the facts are similar and the treatment different, Americans are entitled to question whether this constitutes the equal application of the law promised by Mr. Garland.

Marvel in this paragraph. Of course, these cases involve different laws and there’s no reason to believe the facts are the same, but if they were the same and the DOJ in this hypothetical scenario treat the two cases differently… well, that would be something!

It’s Eli Cash’s self-parody at this point.

If Hillary Clinton was keeping nuclear secrets in her home in violation of the Espionage Act and then sent a lawyer to claim to the Justice Department that she turned over all the documents and she didn’t, then we could entertain Dershowitz’s bizarre thought experiment.

But that’s not what then-FBI director Jim Comey told us. He told us that Clinton had mixed up work stuff on a private server that she stupidly set up so she could keep her personal emails complaining about politics out of the national archives. It was a real and serious problem and it was a problem even if Comey didn’t see it rise to the level of criminality…but there’s still no comparison to the allegations against Trump.

Indeed, even if his actions reached the level of violation of §1924, there would still be no fair comparison.

Hell, even if Trump’s case was about §1924, all of those issues would still be handled differently because when Berger and Clinton were charged with violating that law, it was a misdemeanor. Trump converted it to a felony with a five-year sentence, which means the DOJ would treat these cases differently even if the facts were similar, because the sentence involved is now five times greater.

But until Mr. Garland fully and specifically answers the tough questions about what appears to be an uneven application of rules and practices, “what about his emails?” will be a relevant question.

It calls on the Attorney General to publicly comment on an ongoing investigation in an article about the importance of approaching all cases impartially. Just wow.

Listen, nothing “seems” to be unequal unless you are committed to misleading the public about the laws involved. The facts involved are vastly different and no matter how colloquially you may class them all under the category of “mishandling of classified material”, the law draws sharp distinctions in all of these laws for a reason.

Someone in Martha’s Vineyard has to suck him up and take him for a bike ride or something so he doesn’t fill his days writing this spiel.

“But his e-mails”? A defense of “whataboutism” [Wall Street Journal]


Head shotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email tips, questions or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe is also Managing Director at RPN Executive Search.

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