Many Democrats are claiming that the recent indictment of Senator Robert Menendez (D-NJ) proves that the current Justice Department provides equal justice to Democrats and Republicans. Although it is necessary to wait for the evidence to emerge before judgment is passed on this most recent indictment, what appears so far may be closer to equal injustice.
In both the Menendez and Trump cases, prosecutors are engaging in the questionable tactic of seeking to influence the jury before trial. The photographic display of gold bars and cash in the Menendez case is an image that will remain with everyone who saw it. The same is true of the contrived photographic display by the Justice Department of allegedly classified documents spread on the floor. This "show and tell "was produced by the Justice Department and published in virtually every media outlet in the country.
Both show and tells are wrong. Both are intended to prejudice potential jurors and witnesses and to try the case in the court of public opinion before it is subject to the adversarial process to the courts of law. Both come close to ethically impermissible lines. And both should be opposed by all Americans who care about impartial justice for all defendants.
Two wrongs do not make a right -- nor do they cancel each other out. They simply compound the injustices and demonstrate that this Justice Department -- and several others that came before it -- are willing to violate the spirit if not the letter of the law, Justice Department regulations and legal ethics.
It is unclear whether either of these photographs will be allowed into evidence at the upcoming trials. That would depend on whether it was staged – as the Trump one obviously was – or whether the Menendez display simply recorded what was found and not touched by investigators. If the photographs were to be ruled inadmissible by the trial judge, the prejudice to the defendants would be compounded.
I don't know whether Robert Menendez is guilty, innocent, or somewhere in between. The courts have thrown out several cases in which it was alleged that items of value were given to elected officials in exchange for favors — including a previous one against Menendez. I suspect this will be an easier case to prove in the media than in the courtroom.
Menendez has been a very good Senator, especially with regard to foreign relations regarding the continuing threat to global security from Iran. He is among the more moderate and centrist Democrats in the Senate and is well known for performing constituent services. Whether he stepped over the line here will be determined by a jury after both the government and the defendant present their evidence and each is subjected to the adversarial check of cross-examination and confrontation.
No one should rush to judgment before all the evidence is seen and heard. Nor should Menendez be compelled to resign his seat in the Senate based on allegations, photographs and the kind of one-sided testimony that is heard by grand jurors. The presumption of innocence means just that: at this point in time, Menendez should be deemed no more guilty than other officeholders who have been accused of wrongdoing.
Menendez is up for reelection soon, and already a candidate has announced a challenge. It is fair for voters to look at the totality of information before casting their ballots, but the indictment itself should not become the heavy thumb on the electoral scale, since it is only a one-sided accusation.
One irony of the Justice Department's publication of prejudicial photographs clearly intended to influence the jury and potential witnesses is the fact that the same Justice Department is seeking to impose a gag order on Trump, in part because of the claim that he will try to influence jurors and witnesses against the government.
Both Trump and Menendez have the constitutional right – under the 1st and 6th Amendments – to defend themselves in the court of public opinion. The government, on the other hand, has no constitutional right to try to influence jurors or witnesses. Its only legitimate role is just to seek objective and fair justice. In that regard, the Justice Department is starting off on the wrong foot in both the Menendez and Trump cases.
So stay tuned. This case may unfold quite differently from the illustrated indictment we have seen thus far.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, and the author most recently of Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute, and is also the host of "The Dershow" podcast.
jim