Harvard Law professor Alan Dershowitz and former acting U.S. Attorney General Matthew Whitaker offered their reactions to the latest indictment against former President Trump and highlighted the big issue with the Department of Justice’s case.
“I predicted it,” Dershowitz, author of “Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law,” told "Sunday Morning Futures" host Maria Bartiromo.
“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,” Dershowitz added. “And [special counsel] Jack Smith is wrong when he says there’s one set of laws. He was assigned only one job: to get Trump.”
Dershowitz continued, “Here’s the legal issue: let’s assume hypothetically that a Democrat prosecutor announces in advance ‘I’m only going to investigate Republicans’ and then the investigation produces some evidence of crime. Is that acceptable in America if the same investigation done against Democrats…would also have produced crimes? Is it legal is it justifiable? Put it for a moment in the context of race in the south. What if a southern prosecutor in the ‘50s had said 'we're only going to look at black crimes,' and then he finds a crime by a black person while similar crimes are not being prosecuted by white people. Would the courts accept that? That’s the key issue presented by this indictment.”
Whitaker, meanwhile, pointed out that Smith was reversed 9-0 by the Supreme Court for a previously aggressive position.
“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,” he said. “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.”
One problem Trump has, according to Dershowitz, is a recording from 2021 of him talking about being in possession of a document he did not classify.
“That's a damning piece of evidence," Dershowitz said.
"Now, the defense could be, 'Hey, I had the right to have that piece of information because the Records Act permits me to have it.’ But that's going to be a kind of weak defense. I think this is a much stronger indictment than the [Manhattan District Attorney Alvin] Bragg indictment, but it's the product of targeting."
Whitaker offered a defense strategy Trump’s attorneys could use regarding the document.
“And my understanding is this document that Professor Dershowitz talked about and was spoke about in this tape recording was never recovered,” he said. “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.”