In addition to falsely accusing their political enemies of criminal conduct, some extremists, who are determined to see Donald Trump indicted, have come up with a new weapon: accusing those who disagree with them of "racism."
It began when I said in public what every experienced criminal lawyer was thinking in private:
"The second one [grand jury] is important because of where it is. It gives the prosecutor the power to indict in the District of Columbia, which is a district that is heavily Democratic, and would have a jury pool very unfavorable to Trump and the Trump administration. So it gives the prosecutor a tremendous tactical advantage... The District of Columbia is always solidly Democratic and has an ethnic and racial composition which may be very unfavorable to the Trump administration..."
I did not say that the residents of the District of Columbia would be consciously unfair to indicted Trump associates, or that Black juries are more biased than white jurors. I merely observed -- as the Supreme Court, the NAACP, the ACLU and all experienced lawyers have noted -- that life experiences matter in jury selection and deliberation. It matters whether a jury pool is largely comprised of Democrats or Republicans, Blacks or whites, poor or wealthy. If it didn't matter, our legal system would not go to such lengths to assure diversity in jury pools. This is an uncontroversial observation, but nothing is uncontroversial in the divisive political climate in which we live today.
So people who know better have deliberately distorted my point in order to argue that what I observed was racist. It began with Congresswoman Maxine Waters, who dilutes the powerful term "racism" by tossing it around as promiscuously as rap singers toss around "motherf***er" Here is what she said:
"What he [Dershowitz] is saying is 'all of those black people are there and they don't like Trump and so he's not going to get a fair trial and so they should take it out of that jurisdiction. It shouldn't be there to begin with.' I don't like that, and I'm surprised that Alan Dershowitz is talking like that. We will not stand for it. We will push back against that because that is absolutely racist."
No one was particularly surprised, or in any way influenced, by her crying "racist" once again. If I had said the opposite of what I said -- namely that race doesn't matter in jury selection -- she would have called me a racist as well.
But people were surprised when the writer Dahlia Lithwick of Slate Magazine and the lawyer Richard Painter jumped on Waters's bigoted bandwagon. Lithwick called my observation a racial "dog whistle." She also characterized me -- a lifelong Democrat who voted for and contributed to Hillary Clinton -- as a "Trump Apologist." I am an apologist only for civil liberties and racial equality, not for a candidate against whom I voted.
Painter was even more direct -- and in my opinion unethical -- when he described my empirical observation (with which I am sure he privately agrees) as "racist B.S." and "race baiting." He mendaciously accused me of a "disgusting... attack on a member of Congress," without mentioning that I was responding to a disgusting attack by Congresswoman Waters, in which she falsely accused me of racism. But Painter, who purports to be an "ethics" lawyer, places a low premium on truth, legal ethics and basic decency.
My biggest disappointment came when my friend and former judge Nancy Gertner was asked whether I am a racist She responded by saying: "I refuse to answer on the ground that it might incriminate me." She is right: a truthful answer -- that I am not a racist and am right about the tactical advantage -- would incriminate her among her radical partisan friends. That's what we have come to!
Ari Melber, who replaced the always fair Greta Van Susteren on MSNBC, joined the attack on me by rudely and aggressively questioning my integrity, even to the point of asking me whether I'm being paid by Trump! Then he followed up his hostile interview of me with a friendly interview with Eleanor Holmes Norton, in which he tried to get her -- unsuccessfully -- to accuse me of racism. I had no opportunity to respond to Norton's critical (though generally fair) comments about my observations. I really miss Greta, who is a real journalist, rather than a biased polemicist. But that is the nature of too much current cable TV, in which a Gresham's law -- bad cable hosts drive out the good -- seems to operate.
The civil liberties of all Americans are at stake. I will not be silenced by false and unethical charges of racism from people who are deliberately distorting my views for partisan political purposes. I will respond and expose their bias, bigotry and mendacity, because the issues are too important to be left in the hands of partisan extremists.
Alan M. Dershowitz, Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School and author of "Taking the Stand: My Life in the Law." His new book, "Trumped up! How Criminalizing Politics is Dangerous to Democracy," will be published in August.
Isaac Barr MD FACC