Longtime Democrat and star legal expert Alan Dershowitz in a column at the Gatestone Institute is warning Democrats that if they win the fight against President Trump over presidential privilege, they lose.
It’s because there will at some time be a Republican president.
The issue is whether a sitting president, in this case, Democrat Joe Biden, can waive privilege for his predecessor, President Trump.
Dershowitz, the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School and Jack Roth Charitable Foundation Fellow at Gatestone, said, “So, let’s see how this would have played out if the shoe were on the other foot.”
He explained, “Imagine if President Donald Trump had tried to waive his predecessor’s executive privilege, relating to President Barack Obama’s decision to allow the United Nations Security Council to condemn Israel for its continuing ‘occupation’ of the Western Wall and the roads to Hebrew University and Hadassah Hospital. Many in the Obama administration opposed this one-sided resolution as anti-Israel and wanted the United States to veto it, as it had vetoed previous anti-Israel resolutions. But Obama instructed his UN representative, Samantha Powers, not to veto it.
“Trump knew he would be running against Obama’s vice president and that he might gain an electoral advantage if Congress held hearings on the controversial Obama decision. What advice did Biden give Obama? Is it true that Powers wanted to veto the resolution, but Obama forbade it to take revenge against Israeli Prime Minister Benjamin Netanyahu for his speech opposing the Iran deal?”
He pointed out that those private comments, disclosed, “might well have hurt Biden with pro-Israel voters.”
“What if Obama had been called by a congressional committee to turn over all internal communications — written and oral — regarding his decision, and he claimed executive privilege? And what if then President Trump were to have waived Obama’s privilege?”
Dershowitz pointed out the dispute is an issue because the Biden administration is appealing a ruling from Judge Aileen Cannon to appoint a special master to review documents the FBI confiscated recently during its raid on Trump’s Mar-a-Lago home.
It’s already known that private documents like Trump’s passport were confiscated, as were attorney-client privileged documents. The DOJ says it found classified documents there; Trump said he declassified items he had.
“One thing we know to be certain: many of the academic ‘experts’ and media ‘pundits’ who now support the argument that an incumbent president can waive the executive privilege of his predecessor would be making exactly the opposite argument. They would be saying — as I am saying now — that presidents would be reluctant to have confidential communications with their aides if they knew these communications could be made public by their successor to gain partisan electoral advantage,” he said.
“It would essentially mark the end of executive privilege, which is rooted in Article II of the Constitution.”
The warning he had for America? “The weaponization of the Constitution and the law for partisan advantage has become so pervasive, especially in academia and the media, that predicting what position many experts and pundits will take is no longer possible based on neutral principles or precedents since these have ceased to be the basis for their positions.”
What’s needed today to know the position is to know “which persons or parties will be helped or hurt…”
To Democrats, he warned, “Today’s partisan victory for Democrats, if their waiver argument is accepted, will soon become their loss should Republicans take control. So beware of what you wish for. Today’s dream may well become tomorrow’s nightmare.”