Dershowitz Slams Trump Indictment as Unconstitutional Targeting by Department of Justice

Former Acting AG Matthew Whitaker and Alan Dershowitz appear on Sunday Morning Futures, June 11, 2023.

Former Acting U.S. Attorney General Matthew Whitaker and Harvard Law Professor Alan Dershowitz appeared on this week’s Sunday Morning Futures with Maria Bartiromo to give their insights and analysis regarding the indictment of Donald Trump and listed a number of problems with the Department of Justice’s case, including aggressive prosecution, selective targeting of Trump versus Joe Biden or Hillary Clinton, and whether the Espionage Act should even apply.


Calling Special Counsel Jack Smith’s Friday afternoon statement gaslighting (just as RedState did), Dershowitz slammed the DOJ for targeting Trump while ignoring similar offenses by elected officials who didn’t have the special privileges and protections Trump had as President.

He was assigned only one job: to get Trump. If you put aside all your resources and do what Justice Jackson warned about 80 years ago, where he said, “It’s a question of picking the man and then searching the law books or putting investigators to work to pin some offense on him.” That’s what they did. And Jack Smith is wrong when he says there’s one set of laws. He was assigned only one job: to get Trump.

Whitaker noted the aggressive prosecution by Smith, who’s already been reversed in one aggressive prosecution, before predicting that the issue of whether the Espionage Act or the Presidential Records Act applies will be the number one legal issue in the case.

It’s a very aggressive prosecution by Jack Smith. And I’ll point out that he was the one that got reversed 9-0 by the U.S. Supreme Court on the Virginia Governor Bob McDonnell case for taking a very aggressive position on a statute. You know, the interplay between the Presidential Records Act, which says all documents are covered by that act, and the Espionage Act, which preceded it and was passed in 1917, about four months into World War I, I think is going to be the most important issue that the courts are going to have to decide.

This document [the indictment] only talks about national defense information under the Espionage Act. That’s a separate category under the statutes than classified information that’s marked classified.


Dershowitz predicted that a type of equal protection/targeting claim will be the big issue. While Dershowitz has said in multiple interviews since Friday that the information from a tape recording between Trump, a staffer, an author, and a publisher was “damning,” he added Sunday that he doesn’t believe it’s a slam-dunk conviction:

I think this is a much stronger indictment than the Bragg indictment, but it’s the product of targeting. And the question is, can you prosecute somebody when you targeted that person and went through every hoop, dotted every I, crossed every T, gave lawyers immunity, violated the lawyer-client privilege in many respects, and then came up with something? I don’t know how the courts will look at that.

It is not a slam-dunk conviction. What if, in fact, there is evidence that would be enough to go to a jury, but that evidence would never have been obtained if not for the illegal, unlawful, and unconstitutional targeting only of Republicans rather than Democrats, or blacks other than whites, or Trump other than anybody else. That’s going to be a very interesting, novel argument that eventually the Supreme Court might expect.


About that “damning” recording… Whitaker had some interesting information about it, and a possible defense strategy for Trump:

And my understanding is this document that Professor Dershowitz talked about and was spoke about in this tape recording was never recovered. And so there is going to be a very interesting at trial argument that goes on as to whether… – you know, Donald Trump sometimes extends the truth a little bit, and this may be a case where we don’t actually know what that document was. And since they didn’t recover it, we may never know what that document actually was.

Dershowitz agreed that Trump’s bombastic nature could be a part of his defense strategy:

You know that I’m a little bit of a blowhard. You know that I show things to people all the time. You know I don’t always tell the truth. So don’t assume that the material that I showed these people were actually classified.

He further noted that the indictment doesn’t allege that he actually allowed anyone to read the material.

Both Sen. Lindsey Graham and Rep. Jim Jordan also slammed the indictment on Sunday shows as politically motivated and that the Espionage Act was inapplicable.


Trump will be arraigned on Tuesday in a Miami courtroom.


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