Just as the first casualty of war is truth, so, too, the first casualty of hyper-partisan politics is civil liberties.
Many traditional civil libertarians have allowed their strong anti-Trump sentiments to erase their long-standing commitment to neutral civil liberties. They are now so desperate to get Trump that they are prepared to compromise the most basic due process rights. They forget the lesson of history that such compromises made against one's enemy are often used as precedents against one's friends. As Robert Bolt put it in the play and movie A Man for all Seasons:
Roper: So now you would give the Devil benefit of Law!
Thomas Moore: Yes, what would you do? Cut a great road through the law to get after the Devil?
Roper: I'd cut down every law in England to do that?
Thomas Moore: And when the last law was down, and the Devil turned round on you, where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast — man's laws, not God's — and if you cut them down — and you're just the man to do it — d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.
But today's fair weather civil libertarians are unwilling to give President Trump – who they regard as the devil -- the "benefit of law" and civil liberties.
Consider the issue of criticizing Robert Mueller, the Special counsel. Any criticism or even skepticism regarding Mueller's history is seen as motivated by a desire to help Trump. Mueller was an Assistant US attorney in Boston, the head of its criminal division, the head of the criminal division in Main Justice and the Director of the FBI during the most scandalous miscarriage of justice in the modern history of the FBI. Four innocent people were framed by the FBI in order to protect mass murdering gangsters who were working as FBI informers while they were killing innocent people. An FBI agent, who is now in prison, was tipping off Whitey Bulger as to who might testify against him so that these individuals could be killed. He also tipped off Bulger allowing him to escape and remain on the lam for 16 years.
What responsibility, if any, did Robert Mueller, who was in key positions of authority and capable of preventing these horrible miscarriages, have in this sordid incident? A former member of the parole board – a liberal Democrat who also served as mayor of Springfield, Massachusetts – swears that he saw a letter from Robert Mueller urging the denial of release for at least one of these wrongfully convicted defendants. When he went back to retrieve the letter, it was not in the file. This should surprise no one since Judge Mark Wolf (himself a former prosecutor), who conducted extensive hearings about this entire mess, made the following findings:
"The files relating to the Wheeler murder, and the FBI's handling of them, exemplify recurring irregularities with regard to the preparation, maintenance, and production in this case of documents damaging to Flemmi and Bulger. First, there appears to be a pattern of false statements placed in Flemmi's informant file to divert attention from his possible crimes and/or FBI misconduct....
Second, contrary to the FBI's usual policy and practice, all but one of the reports containing Halloran's allegations against Bulger and Flemmi were not indexed and placed in an investigative file referencing their names. Thus, those documents were not discoverable by a standard search of the FBI's indices. Similar irregularities in indexing and, therefore, access occurred with regard to information that the FBI received concerning an extortion by Bulger of Hobart Willis and from Joseph Murray concerning the murder of Brian Halloran, among other things.
Third, when documents damaging to the FBI were found by the Bureau, they were in some instances not produced to the defendants or the court at the time required by the court's Orders."[1]
Judge Wolf also made a finding that directly references Mueller's state of knowledge regarding the "history":
"The source also claimed to have information that Bulger and Pat Nee had murdered Halloran and Bucky Barrett. The source subsequently said that there was an eyewitness to the Halloran shooting who might come forward, and elaborated that: "there is a person named John, who claims he talked to Whitey and Nee as they sat in the car waiting for Halloran on Northern Avenue. He sits in a bar and talks about it. He saw the whole operation". The source added that the person providing the information to the source "will be willing to talk to you (authorities) soon." On February 3, 1988, Weld directed Keeney to have the information that he had received sent to the United States Attorney in Boston, Frank McNamara, and to the Strike Force Chief, O'Sullivan. Weld added that: "Both O'Sullivan and [Assistant United States Attorney] Bob Mueller are well aware of the history, and the information sounds good."[2]
It is not the beyond the realm of possibility therefore that Mueller wrote this letter, even if it is no longer in the files. If in fact Mueller wrote such a letter, without thoroughly investigating the circumstances, he surely bears some responsibility. Moreover, it is widely believed among Boston law enforcement observers that the FBI was not really looking for Whitey Bulger during the years that Mueller was its Director. It is believed that the FBI was fearful about what Bulger would disclose about his relationship with agents over the years. It took a member of the US Marshall's office to find Bulger who was hiding in plain view in Santa Monica, California.
Recently, a former federal judge, who used to be a civil libertarian, rushed to Mueller's defense, declaring "without equivocation" that Mueller "had no involvement" in the massive miscarriage of justice. Her evidence is the lack of evidence in the files. But no civil libertarian should place such great trust in government files, especially in light of Judge Wolf's findings. They should join my call for an objective investigation by the Inspector General of the Justice Department before they assure the public "without equivocation" that Mueller had absolutely "no involvement." But these "Get Trump At Any Cost" partisans have rejected my call for an investigation, out of fear that it may turn up information that might tarnish the image of the Special Counsel who is investigating Trump. Instead they criticize those of us who point out that Mueller was "at the center" of the Justice Department and FBI, while this miscarriage of justice occurred. All civil libertarians should want the truth about this sordid episode -- and Mueller's possible role in it -- regardless of its impact, if any, on the Trump investigation. Mueller too should welcome an objective investigation, which might eliminate any doubt about his role in this travesty. But too many former civil libertarians are prepared to sacrifice civil liberties and the quest for truth on the altar of "Get Trump."
 Robert Mueller. (Photo by Alex Wong/Getty Images) |
This is all too typical of the about-face many civil libertarians have taken since Trump became president. I have previously written about the ACLU's abdication of its traditional role in challenging governmental overreaching. For the new ACLU getting Trump trumps civil liberties.
It is ironic to see many right-wingers being the ones to criticize overreach by law enforcement, while many left-wingers now defend such overreaching. Hypocrisy and selective outrage abounds, as neutral principles take a back seat. Conservatives used to say that "a conservative is a liberal who has been mugged." I would respond that "a liberal is a conservative who is being audited or whose kid was busted for pot." Today a civil libertarian is a conservative whose candidate is being investigated, while a law-and-order type is a liberal who wants to see Trump charged or impeached.
I am a liberal who voted against Trump but who insists that his civil liberties must be respected for all of our sake.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of Trumped Up, How Criminalization of Political Differences endangers Democracy.
This article first appeared in The Hill.
[1] United States v. Salemme, 91 F. Supp. 2d 141, 154 n.3 (D. Mass. 1999).
[2] Id. at 256-57.
