Alan Dershowitz On The Durham Report: Good People Doing Bad Things

The basic conclusions reached by the Durham report mirror the thesis of my book Get Trump: namely that good people have been willing to do bad things in order to prevent Donald Trump from being elected (or reelected) as president. These good people honestly believe that the noble (at least in their view) end in “getting” Trump and preventing him from being president justifies ignoble means, including mendacity and violation of long-established principles.

There can be no doubt that the Durham report is correct in having concluded that government officials – from the top down – viewed the evidence (or lack thereof) through the prism of resolving all doubts against Trump and in favor of his opponents. This was not so much a partisan bias, favoring Democrats over Republicans, because some of the worst offenders are Republicans who honestly believe that the Trump presidency endangered the national security of the United States.

They have the right to hold such a belief, whether correct or incorrect, but as the Durham report made clear, they had no right to distort the facts, the law and the principles in an effort to prevent the perceived danger from materializing, It was Justice Louis Brandeis who understood the dangers of this approach a century ago, when he warned “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” Many of the people involved in the wrongdoing documented by the Durham report were well-intentioned. But they had little understanding of the consequences of their actions.

These consequences include applying a double standard based on who the individual is, rather than what he has done. The Bible cautions people who administer justice not to “recognize faces.” This is the origin of the blindfold over the eyes of the statute of justice. But the Durham report establishes that many of those charged with doing justice peeked under their blindfolds and saw that the person involved was Donald Trump. They recognized his face and they applied the double standard of justice or injustice to him.

Reasonable people can and do continue to believe that Trump poses dangers to democracy. I'm not here to argue that they are wrong. Indeed I plan to vote against him for the third time, because I share some of their concerns. But what these well-intentioned people did poses a far greater danger to the rule of law and our constitutional system than anything Trump has done or is likely to do. Their benighted, even if well-intentioned, actions threatened to establish dangerous precedents that lie around like loaded guns, ready for the hand of any tyrant who is ill-intentioned.

It is important therefore that the Durham commission exposed the wrongdoing of these well intentioned government operatives. The real question is whether the agencies involved will take steps to prevent the recurrence of the wrongs documented in the Durham report. These wrongs will not be easy to fix, because they are subtle and often not visible. They inhere in the minds and souls of those who committed them, even if some of their actions are not subject to external checks.

Another challenge that will be faced by those who want to see change is that critics of the report – even those who have not read it – will point out that it was written by a prosecutor appointed by the Trump administration. Already the media is seeking to discredit its conclusions in that way. The headline in the New York Times – “In final report, Trump era special counsel denounces Russia investigation” – highlights Durham’s appointment by the Trump administration, as if to suggest partisan bias by the author of the report who has had long experience as a non-partisan prosecutor.

Many Americans, particularly those or part of the get Trump at any cost movement, will not see the need for change based on the conclusions of the Durham report. They will continue to believe that the Obama administration and the various governmental agencies taken to task by their report did the right thing. The report itself is written largely in dry technical language and will not well serve the need to educate the American public about the dangers inherent in doing what these wrongdoers did. It is unclear whether John Durham will speak further about this four-year investigation and conclusions. I hope he does. The broad lessons that should be drawn from this report are too important to downplay.