Alan Dershowitz: Are investigations of Trump the new McCarthyism?

When I came of age during the 1950s, liberals and civil libertarians were deeply concerned about the abuses of congressional investigations to expose communists and “fellow travelers.” Republican Sen. Joseph McCarthy (Wis.) was using congressional committees to do his dirty work.

The committee leaders would claim that they had legitimate legislative purposes in subpoenaing actors, professors and government employees to interrogate them about their past political affiliations. The purported purposes were to legislate more effective controls over communist influence in our government and to conduct oversight of the executive branch. Most liberals and civil libertarians saw through this ruse. The obvious purpose was to expose, embarrass and unemploy left-wing individuals associated with the Communist Party during the 1930s.

My law professor, mentor, and friend at the time, Telford Taylor, the chief prosecutor at the Nuremberg war crimes trials after World War II, wrote a masterful critique of these bogus congressional hearings entitled “Grand Inquest.” In it he provided an extensive history of the misuse of hearings for partisan and ideological purposes. He called for reform, including judicial oversight of congressional excesses. A young liberal lawyer named Abner Mikva, who later became a distinguished federal judge, wrote a glowing review of the book, though he criticized Taylor for not going far enough and not being enough of a true civil libertarian.

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It is quite fair to say that back in the day, virtually all liberals and civil libertarians, led by the American Civil Liberties Union (ACLU), wanted to impose restrictions on the power of Congress to investigate, subpoena and question individuals for partisan or ideological purposes. Now the shoe is on the other foot. It is the Democrats who are abusing their congressional investigations for partisan and ideological purposes. It is the Democrats who are putting forward the phony arguments about legislative purposes, such as the need for new laws and congressional oversight. It is the Democrats in the House who are determined to misuse their legislative power to gain advantages in the upcoming elections.

Now it is the Republicans who are crying foul and who are claiming that the Democrats are abusing the power of the congressional committees they control. However, no one should be surprised by this shift in attitudes because most people, especially politicians, believe in due process “for me but not for thee.” Very few citizens advocate neutral rights for all.

The decision by Judge Amit Mehta to authorize broad congressional investigations of the Trump administration and President TrumpDonald John TrumpJulián Castro: It's time for House Democrats to 'do something' about Trump Warren: Congress is 'complicit' with Trump 'by failing to act' Sanders to join teachers, auto workers striking in Midwest MORE himself, going back to well before he was a presidential candidate, could easily have been written by a right-wing judge in the 1950s. It swallows, whole hog, the claimed legitimate legislative purposes put forward by those committees now led by the Democrats. It goes even further and suggests that a court has no power to probe the real motives behind legislative investigations, so long as the claimed motives are plausible. Under this decision that goes against civil liberties, Congress could investigate any person for any reason as long as it pretends to be doing so for a legitimate legislative purpose. The decision is an open invitation for abuse of power.

During the 1950s, the good old ACLU would be in court challenging abuses of congressional investigatory power, but the current ACLU has one dominant agenda, which is to oppose Trump regardless of the means used and to raise large sums of money based on this agenda. So the ACLU will not side with Trump in court. It will never side with Trump in court, regardless of how abusive congressional committees may become and regardless of how many rights are violated. The ACLU is now part of the problem, not part of the solution, for this rampant abuse of civil liberties.

Among the most important roles of the federal courts is to serve as a check and balance on the excesses of other branches of government, including the legislature. The courts should look beneath the claimed justifications for investigations of individuals and decide whether these justifications represent the real reasons behind the issuance of subpoenas and other exercises of congressional power. There should be a balancing test to weigh the legitimate interests of Congress against the rights of those targeted by its investigations. Congress should not be given carte blanche, as the decision by Judge Mehta gives it, to investigate anyone and anything for any purpose as long as the committee chairmen can recite the correct words as purported justifications for their actions.

All civil libertarians, whether Democrat, Republican, or independent, should indeed be concerned about abuses of power by congressional committees. Today, Trump and his administration are the targets. Tomorrow, it may be Democrats. The next day, you could be the target.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. His new book is “The Case Against the Democratic House Impeaching Trump.” You can follow him on Twitter @AlanDersh.