Alan Dershowitz on Kavanaugh investigation: "This kind of sexual McCarthyism is a terrible, terrible precedent"
Video ››› ››› MEDIA MATTERS STAFF
Loading the player reg...
Loading the player reg...
Loading the player reg...
After former Trump campaign Chairman Paul Manafort and former Trump attorney Michael Cohen were found guilty and pleaded guilty, respectively, each on eight criminal counts, right-wing media immediately rose to President Donald Trump’s defense. Multiple media figures claimed that none of the charges had anything to do with Trump and that Trump’s former associates pleaded guilty to crimes that “don’t exist.”
Loading the player reg...
Two lawyers for President Donald Trump, Rudy Giuliani and Jay Sekulow, have begun publicly making the case on behalf of their client that colluding with a foreign country to swing an election is not be a crime. During a July 30 appearance on Fox News’ Fox & Friends, Giuliani claimed that “collusion is not a crime,” an argument he went on to repeat that same day to CNN’s Alisyn Camerota. The next day, Sekulow appeared on Fox & Friends and declared multiple times that “collusion is not a crime.”
This isn’t the first time that Giuliani has suggested that potential collusion between the Trump campaign and Russia may not have been illegal. In May, he told Fox’s Laura Ingraham that there is “nothing illegal” about “looking for dirt” on political opponents, even “if it comes from a Russian or a German or an American.” And Trump in December himself told The New York Times, “Even if there was [collusion], it's not a crime." These claims from the president and his lawyers echo more than a year of similar protestations by right-wing and pro-Trump media figures:
Fox’s Sean Hannity: “The breaking news today is [special counsel Robert] Mueller is just now starting investigating Russia collusion, which isn’t a crime.”
Hannity: “Today is the one-year anniversary of the Mueller witch hunt, and so far the special counsel has not provided a single shred of evidence of any collusion. And collusion is not against the law.”
Hannity: “Collusion is not a crime.”
Hannity : “Collusion’s not a crime. That’s the whole irony here.”
Fox’s Jeanine Pirro: Trump “only needs to answer questions about crimes. If it’s not a crime to fire [former FBI Director] Jim Comey, then what crime are we talking about? Collusion? Russian collusion is not a crime.”
Pirro: “Collusion is not a crime, so why are all the Democrats saying we’re looking for collusion? Collusion is not a crime. How stupid are they?”
Fox’s Laura Ingraham: “Collusion’s not a crime. ... As Andy McCarthy keeps saying, collusion -- there is not a crime in actually speaking to Russian officials during an election cycle.”
Fox’s Gregg Jarrett: The FBI “launched the investigation, as I argue in my book, to frame Donald Trump for things he didn’t do, for crimes he didn’t commit. Collusion is not even a crime in a political campaign."
Jarrett: “You can collude all you want with a foreign government in an election.”
Jarrett: “It was always a myth that collusion in a political campaign is a crime. It’s not.”
Jarrett: “Collusion is only criminal in an antitrust setting. It has nothing whatsoever to do with elections.”
Fox Business Network’s Lisa Kennedy Montgomery: “As the president’s attorney Jay Sekulow has pointed out a bunch of times, collusion is not a crime. And that’s absolutely true.”
Frequent Fox guest Alan Dershowitz: “You cannot impeach a president unless he’s committed a crime. Collusion is not a crime.”
Dershowitz: “Collusion is not a crime. I have seen no evidence of collusion.”
Dershowitz: “I’ve been teaching criminal law for 50 years, and I know the federal criminal code pretty well. The word ‘collusion’ appears only in one context, and that is if businesses collude with each other in violation of the antitrust law, that’s a crime. But there’s no crime of collusion with a foreign government.”
Dershowitz: Mueller is “inventing a crime. There’s no such crime as 'collusion' in the federal statute.”
Fox's Brit Hume: “Can anybody identify the crime? Collusion, while it’d obviously be alarming and highly inappropriate for the Trump campaign -- of which there is no evidence by the way, of colluding with the Russians, -- it's not a crime.”
NRATV’s Dan Bongino: “I don’t believe the collusion story at all. But the fact is, Tucker, even if there was collusion, collusion isn’t even a crime.”
Fox’s Geraldo Rivera: “What is the crime? If the Russian KGB chief is talking to Paul Manafort and the chief says, ‘You know, I've got this dirt here that says Hillary Clinton was this or that.’ And Paul Manafort says, ‘Next Wednesday, why don't you release that. That'd be great for us.’ I don't know that that's a crime at all, what’s the crime?”
Conservative author Ronald Kessler: “There’s no violation of the law if, in fact, the campaign colluded with Russia, whatever that means.”
Conservative author Michael Reagan: “Collusion is not breaking the law.”
Pro-Trump Twitter troll Bill Mitchell:
Mueller was appointed to investigate crimes related to Russian interference in the 2016 elections. Since the type of collusion they have been investigating for Trump was never a crime, what "crime" are they investigating?
Right. Clinton. Bank on it. Tick-tock.
— Bill Mitchell (@mitchellvii) March 31, 2018
Lib talking heads saying, "When Mueller indicts Trump for Russian collusion, his supporters have to choose between America and Trump!"
There will be NO INDICTMENTS of Trump. It is pure liberal fantasy. Trump did not collude and it wouldn't even be a crime if he had!#WalkAway
— Bill Mitchell (@mitchellvii) July 15, 2018
There's no possible crime. Collusion is not a crime under any US law. It's not treason unless we are at war with the country. Foreign nationals are allowed to work on or for campaigns, as long as they're not paid, under FEC laws: https://t.co/5gSu8oAG1C #RussianCollusion
— MARK SIMONE (@MarkSimoneNY) May 17, 2018
Frequent Fox guest Jonathan Turley on Fox & Friends: “Collusion itself is not a crime”
Video by John Kerr
Following the announcement of Supreme Court Justice Anthony Kennedy’s retirement, media have been speculating about the possibility of a nominee selected by President Donald Trump casting the deciding vote overturning Roe v. Wade.
While some mainstream outlets have rightly warned about the likelihood and negative impacts of overturning, or even further hollowing out, Roe’s protections, many conservative outlets and figures deployed a variety of excuses either to suggest that Roe is not at risk or to downplay any potential negative effects such a move would have. But make no mistake -- the Trump administration and its anti-abortion allies haven’t been shy about their goal: making abortion inaccessible or even illegal in the United States, no matter what the consequences.
In 2016, then-candidate Trump said in response to a debate question about whether he would overturn Roe: “Well, if we put another two or perhaps three justice on, that’s really what’s going to be — that will happen. And that’ll happen automatically, in my opinion, because I am putting pro-life justices on the court.” Previously, in July 2016, then-vice presidential nominee Mike Pence said that he believed that electing Trump would lead to the overturning of Roe and that he wanted to see the decision “consigned to the ash heap of history where it belongs.” In return, anti-abortion groups have also supported the administration -- a fact underscored by Trump’s keynote address at the anti-abortion group Susan B. Anthony List’s (SBA List) gala in May.
Despite the administration’s promise, conservative media and figures are deploying a number of inaccurate excuses to either deny or downplay the severity of the threat to abortion rights with another Trump-appointed justice on the court:
In the aftermath of Kennedy’s announcement, some conservative media argued that abortion rights are not threatened because the sitting justices -- including Chief Justice John Roberts and Trump’s previous nominee Justice Neil Gorsuch -- would be reticent to overturn precedent.
For example, an editorial in The Wall Street Journal argued that because “the Court has upheld [Roe’s] core right so many times, ... the Chief Justice and perhaps even the other conservatives aren’t likely to overrule stare decisis on a 5-4 vote.” Similarly, during a June 27 appearance on Fox Business Network’s Lou Dobbs Tonight, conservative lawyer Alan Dershowitz claimed that Roe is safe because “true conservatives also follow precedent,” and therefore any conservative appointee would not vote to overturn it. Short-serving former White House Communications Director Anthony Scaramucci said it is unlikely that Roe would be overturned because “the court recognizes that there are certain fundamental principles that are in place and certain presidential precedent-setting principles in place." He concluded, “I know there are conservatives out there that want it to be overturned but I just don't see it happening."
It appears highly unlikely that the new Supreme Court would keep Roe intact. Slate’s Mark Joseph Stern wrote that Kennedy’s retirement “ensured” that Roe will be overturned -- even if it ultimately will “die with a whimper” as the Supreme Court would allow anti-choice lawmakers to foist “extreme regulations on clinics, outlawing abortion after a certain number of weeks, or barring a woman from terminating a pregnancy on the basis of the fetus’ disability or identity.” As Stern concluded, “the constitutional right to abortion access in America is living on borrowed time.” This argument was also echoed by The Daily Beast’s Erin Gloria Ryan who contended that one more Supreme Court vote against abortion would mean that “the conservative minority in this country will have the power to uphold laws designed to force pregnant women into motherhood.” During the June 27 edition of MSNBC’s Deadline: White House, host Nicole Wallace explained that the impact of Kennedy’s retirement means “actually talking about a future generation growing up with abortion being illegal again” and “young women and men taking the kinds of risks that a generation now hasn't had to consider.”
In other instances, conservative media have argued that Roe is "bad" law because the constitution doesn't include a right to abortion. By this logic, they contend, a reversal of precedent is inconsequential because the new nominee would merely be helping correct previous judicial overreach.
In an opinion piece for The Sacramento Bee, The Daily Wire’s Ben Shapiro argued that Roe v. Wade is a decision that was rendered “without even the most peremptory respect for the text and history of the Constitution,” but that “pleased the Left.” An improved Supreme Court, according to Shapiro, “would leave room for legislatures – Democrats or Republicans – to make laws that don’t conflict with the Constitution.”
In National Review, Rich Lowry similarly said that Roe “is, in short, a travesty that a constitutionalist Supreme Court should excise from its body of work with all due haste.” Lowry concluded that Roe “has no sound constitutional basis” and implied that it should be overturned because it is an embarrassment for the court.
The Federalist’s Mollie Hemingway claimed on Fox News’ Special Report with Bret Baier, “Even people who are pro-choice recognize that it was a poorly argued judicial decision.” She also said that Trump does not need to ask the judicial candidates about Roe v. Wade as “so many people regard it as such a poorly reasoned decision.” Fox News contributor Robert Jeffress also said on Fox News’ Hannity that Trump doesn’t need to ask about Roe because “there is no right to abortion.” Jeffress continued that though abortion is “nowhere in the Constitution” there is, however, a constitutionally protected “right to life that has been erased for 50 million children butchered in the womb since 1973.”
But, as legal analyst Bridgette Dunlap wrote for Rewire.News, these claims that Roe is bad law are part of a conservative tactic to invalidate abortion rights more broadly. She explained: “In order to portray abortion rights as illegitimate, conservatives like to argue—inaccurately—that the Court legalized abortion in Roe v. Wade by inventing a right to privacy that is not grounded in the Constitution’s actual text.” Instead, she noted, Roe is based on the idea that “using the force of law to compel a person to use her body against her will to bring a pregnancy to term is a violation of her physical autonomy and decisional freedom—which the Constitution does not allow.”
In addition, Roe is not just an important acknowledgement of the right to legally access abortion care -- even if states have already chipped away at the accessibility of that care. As Lourdes Rivera of the Center for Reproductive Rights explained in the National Law Journal, overturning Roe would impact the right to privacy and mean “uprooting a half-century of judicial decision-making, with profound consequences for our most cherished rights and essential freedoms.” Lawyer Jill Filipovic similarly wrote for Time magazine that “if Roe is done away with under the theory that privacy rights don’t exist, this could mean that there is no constitutional right to birth control, either.” In addition, she said, “cases that came after Roe, including Lawrence v. Texas, which invalidated a Texas law that criminalized sex between two men, were decided on similar premises — and could be similarly imperiled.”
A common argument by conservative media -- and in some cases, Trump himself -- is that an overturning of Roe would merely return abortion regulations to the states and not completely outlaw the practice.
For instance, according to Fox News guest and constitutional attorney Mark W. Smith, even if Roe were overturned, it wouldn’t “outlaw abortion” in the United States, it would just allow “states and voters [to] decide what to do about abortion.” Fox News commentator Andrew Napolitano also made this claim, saying the “worst case scenario” is that if Roe “were to be repealed or reversed, the effect would be the 50 states would decide” their own abortion regulations. This inaccurate claim was also made during segments on CNN and MSNBC. During a June 27 appearance on CNN Newsroom with Brooke Baldwin, CNN legal commentator and former Virginia Attorney General Ken Cuccinelli argued that “all overturning Roe v. Wade does is” give the regulation power “to the states.” The Weekly Standard’s Bill Kristol made a similar claim on MSNBC Live with Velshi and Ruhle, when he argued that overturning Roe would merely “kick [abortion regulation] back to the states.”
In reality, sending abortion regulation “back to the states” would functionally outlaw abortion access across large parts of the country. As Reva Siegel, a professor at Yale Law School wrote for The New York Times, returning the issue to the states would be disastrous because already, “27 major cities are 100 miles or more from the nearest abortion provider, and we can expect these ‘abortion deserts’ in the South and the Midwest to spread rapidly” if states are given free reign. New York magazine’s Lisa Ryan similarly reported that currently “there are only 19 states in which the right to abortion would be secure” if Roe is overturned.
This landscape could easily worsen with anti-abortion groups turning their attention more directly to legislation on the state level rather than the federal level. As HuffPost’s Laura Bassett noted, a number of “abortion cases are already worming their way through the lower courts” that could further entrench abortion restrictions in a number of states. In 2016, ThinkProgress explained what a world before Roe looked like: “Wealthy women were able to access safe, though illegal, abortions, but everyone else had to risk their safety and sometimes their lives, and doctors had to risk going to jail.”
Another common reaction among conservative media has been to cast blame back on abortion rights supporters. In this case, right-wing media have attacked supporters of Roe for “overreacting” to the potential loss of abortion rights, and accused others of opposing Trump’s nominee not on facts, but on principle.
For example, during the June 27 edition of Fox Business’ Making Money with Charles Payne, guest and attorney Gayle Trotter argued that abortion rights supporters were just “trying to scare people” in order to “defeat the president’s nominee.” Federalist Society Executive Vice President Leonard Leo also echoed this argument during a June 27 appearance on Fox News’ Special Report with Bret Baier. According to Leo, “The left has been using the Roe v. Wade scare tactic since 1982, when Sandra O’Connor was nominated. And over 30 years later, nothing has happened to Roe v. Wade.”
Similarly, on June 29, Trump supporters and YouTube personalities Lynnette Hardaway and Rochelle Richardson, popularly known as Diamond and Silk, appeared on Fox News’ Fox and Friends to discuss potential replacements for Kennedy. During the segment, Diamond asked why Democrats were “fearmongering” and “going into a frenzy” before knowing the nominee or their position on abortion. After interviewing Trump on Fox Business about his thought process for nominating Kennedy’s replacement, Maria Bartiromo said on the Saturday edition of Fox & Friends Weekend she believed that “all of this hysteria” about a potential overturn of Roe was being "a little overdone” by the left.
Pro-choice advocates are not “overreacting” to potential attacks on the protections afforded by Roe. As journalist Irin Carmon explained on MSNBC Live with Craig Melvin, Kennedy’s retirement “is the point that the conservative movement, that the anti-abortion movement, has been preparing for for 40 years” by “taking over state legislatures and passing laws that are engineered to chip away at the abortion right.” Carmon said that even with Kennedy on the bench, “access to abortion, and in many cases contraception, was a reality [only] on paper already.” Now, “it is disportionately Black and brown women who are going to suffer with the regime that is going to come forward.” Attorney Maya Wiley similarly argued on MSNBC’s The Beat that overturning of Roe would mean “essentially barring a huge percentage of women from huge swaths of the country from access” to abortion.
Polling shows a large majority of Americans support the outcome of Roe. But some right-wing media personalities have said that such findings ignore other polling about Americans’ supposed support for restrictions on later abortion.
For example, The Weekly Standard’s John McCormack argued on Fox News’ Outnumbered Overtime that the claims of support for abortion access are inaccurate because there is a “great misunderstanding about Roe v. Wade” and the impact it has on abortion restrictions and that “there is actually pretty popular support for second trimester regulations.” This talking point has been used elsewhere, such as by the Washington Examiner and anti-abortion outlet Life News, in an attempt to discredit perceived support for Roe.
The argument deployed by McCormack has also frequently been used by right-wing outlets in the past -- despite the disregard such an argument shows for the complexities involved in abortion polling. As Tresa Undem, co-founder and partner at the public-opinion research firm PerryUndem, wrote for Vox, most “standard measures” that are used “to report the public’s views on abortion ... don’t capture how people really think” about the issue. In contrast to right-wing media and anti-abortion claims, polling done by Harvard T.H. Chan School of Public Health and Hart Research Associates shows that support for later abortions goes up when people realize that abortions in later stages of pregnancy are often undertaken out of medical necessity or for particular personal circumstances.
As Trump prepares to announce his selection for the Supreme Court on Monday, July 7, right-wing and conservative media will only offer more of these excuses to downplay that Roe v. Wade is firmly in the crosshairs.
The report had nothing to do with the FBI’s Trump-Russia probe
Less than 24 hours after the Department of Justice’s (DOJ) inspector general (IG) released a long-awaited report on the department’s investigation into Hillary Clinton’s use of a private email server, President Donald Trump’s allies in the media are already using the report to call for special counsel Robert Mueller’s removal. The IG report clearly states that its investigation “found no evidence that the conclusions by department prosecutors were affected by bias or other improper considerations”; and yet, the president’s sycophants in right-wing media are spinning the report to claim that “anything that Mueller is doing” in his probe of the Trump campaign’s ties to Russia “is tainted” by the IG’s findings.
On June 14, DOJ IG Michael Horowitz released a report on the DOJ’s actions during the investigation into Clinton’s use of a private email server. According to the report, the IG found, among other things, that former FBI Director James Comey was “insubordinate” in his handling of the case; that he violated department policy by publicly discussing the investigation; and that two FBI officials, Peter Strzok and Lisa Page, exchanged disparaging texts about Trump, with one text from Strzok reading, “We’ll stop” Trump from becoming president. While Horowitz severely criticized Comey, Strzok, and Page for their conduct, the inspector general concluded that there was “no evidence that the conclusions by department prosecutors were affected by bias or other improper considerations; rather, [the IG] concluded that they were based on the prosecutors’ assessment of the facts, the law, and past Department practice.”
Even though the IG report focused only on the FBI’s investigation of Hillary Clinton’s email server and had nothing to do with the FBI’s investigation of the Trump campaign’s alleged ties to Russia, and even though it found that there was no evidence of bias in the FBI determination, the president’s defenders on Fox News and in conservative media are still twisting themselves into knots to try to use the IG report as a reason to call for Mueller’s removal. On the June 14 edition of Hannity, a panel of four of Trump’s staunchest defenders shouted about how the report “taint[s] the entire Mueller investigation”:
And the following morning on the June 15 edition of Fox & Friends, co-host Brian Kilmeade argued that the Mueller investigation is “contaminated” by the IG’s findings:
The reaction from Trump’s sycophants in conservative media is unsurprising, considering that they preemptively laid the groundwork to discredit the IG’s report. But, even as conservative media continue their convoluted and disingenuous calls for Mueller’s removal, the special counsel’s investigation continues, racking up numerous indictments, one of which resulted in Trump’s former campaign manager having his bail revoked, landing him in federal prison until his trial.
Loading the player reg...
Conservative media were quick to claim former Secretary of State John Kerry is violating the Logan Act following a Boston Globe report that he is working to save the Iran nuclear deal by meeting with top officials from Iran, Germany, and France. But according to a legal expert, the Logan Act, which prohibits private citizens from engaging in unauthorized intervention in U.S./foreign disputes to "defeat the measures of the United States," wouldn't apply in part because the deal is still current U.S. policy.
The May 4 Globe story reported that Kerry has met twice with Iranian Foreign Minister Javad Zarif and French President Emmanuel Macron, has met German President Frank-Walter Steinmeier, and has talked on the phone with a top European Union official as he seeks to preserve the nuclear deal. America’s European allies are also urging Trump not to end the pact, as he has threatened to do. Brookings Institution foreign policy expert Michael O’Hanlon told the Globe that “former secretaries of state often remain quite engaged with foreign leaders, as they should,” but that “it’s rarely so issue-specific.” According to the Globe’s report, Kerry is working with both former Secretary of Energy Ernest Moniz, who along with Kerry helped negotiate the nuclear deal, and a group called Diplomacy Works. They are also lobbying Congress to support the deal and arguing the case in media outlets.
President Donald Trump’s allies in conservative media were quick to attack Kerry over this report. Alan Dershowitz, a retired Harvard Law School professor who has tirelessly defended Trump on the Russia investigation, said on the May 5 edition of Fox & Friends that if the Logan Act were enforced, “my friend John Kerry would be violating” it. On May 7, Fox & Friends co-host Steve Doocy said, “Some have suggested, isn’t he breaking the Logan Act.” Right-wing website The Federalist claimed that Kerry’s actions are “treasonous and likely in violation of the Logan Act.” Many Trump supporters on Twitter accused Kerry of being in violation of the Logan Act. And Trump himself recently wrote on Twitter that Kerry’s actions were “possibly illegal.”
But according to University of Texas School of Law professor Steve Vladeck, who explained the history of the Logan Act to The Atlantic in early 2017, the Logan Act wouldn’t apply to anything Kerry is doing, in part because the Iran nuclear deal is still official government policy. From the Globe’s report:
“The act only applies to conduct that is designed to ‘defeat the measures of the United States’ or influence the conduct of foreign governments,” Vladeck said. “If all Kerry is doing is working to keep in place something that’s still technically a ‘measure of the United States,’ I don’t see how the statute would apply even if someone was crazy enough to try it.”
Loading the player reg...
Loading the player reg...
Loading the player reg...
After President Donald Trump admitted in a June 22 tweet that “I did not make, and do not have” any “‘tapes’ or recordings of my conversations with [FBI Director] James Comey,” conservative and pro-Trump media figures and outlets tried to defend his original threat that claimed, “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!” The media figures and outlets insisted the move was “brilliant,” “impressive,” and “a victory” and said it was a “smart way to make sure [Comey] stayed honest” in his congressional testimony.