Donald Trump’s difficulty staffing his White House extends to the legal team he’s hired to defend him in the impeachment trial in the Senate. On Friday, Trump said he’d retained Alan Dershowitz and Ken Starr. It’s odd that a president mired in scandal would hire two men that have been plagued with controversy. In 2016, Starr, best known as the special prosecutor who pursued the impeachment case against Bill Clinton, resigned from his post as president of Baylor University amid criticism of his mishandling sexual assault cases involving football players. Later that year, Starr also left the professorship he held at Baylor. More recently, both Starr and Dershowitz have been in the news for the sweetheart deal they negotiated in 2008 for the accused child molester Jeffrey Epstein.
Prior to the Epstein scandal, Dershowitz was perhaps the most famous defense attorney in America thanks to his long list of high-profile clients like Claus von Bülow, O.J.Simpson, Jeffrey MacDonald, and Mike Tyson. There’s nothing wrong, it must be stressed, with a defense attorney’s taking unsavory clients. The adversarial legal system functions best when all defendants receive a vigorous defense. Dershowitz has done a public service by providing his clients with brassy, no-holds-barred advocacy.
With Epstein, however, Dershowitz crossed a crucial line between representing a loathsome client and having a personal relationship with one. As The New Yorker reported last July, Dershowitz himself wrote that when Epstein asked him to take his case, “he hesitated, since Epstein was an ‘acquaintance,’ and lawyers are cautioned against representing people they know socially.”
The word “acquaintance” is far too mild. Epstein and Dershowitz socialized together. Epstein provided Dershowitz with financial advice while Dershowitz hooked Epstein up with his Harvard social network. On at least one occasion, Dershowitz received a massage at Epstein’s residence, although the lawyer says it was given by a “fifty-year-old Russian woman named Olga,” adding, “I kept my underwear on.”
At least two of Epstein’s victims claim that they were molested by Dershowitz while they were minors. He strenuously denies these claims and has used in his own defense the same hardball tactics he honed while arguing for his clients. He described one accuser as a “serial liar” and a “prostitute” who had “made the whole thing up out of whole cloth,” because she wanted “a big payday.”
Given how toxic the connection with Epstein is, it’s mind-boggling that Trump would want Starr and Dershowitz to be the public face of his defense. Dershowitz himself must be aware of the bad optics. In 1999 he was asked by CNN, “How would you conduct defending Bill Clinton in the Senate if you were in charge of it?” Dershowitz responded, “Well, the first thing I would do is say, ‘Fire Dershowitz.’ We don’t want to get involved with people saying, ‘O.J.’s lawyer is representing the president.’” How much worse is it now to have Jeffrey Epstein’s lawyer and friend representing the president?
Writing in The Washington Post, George Conway, a leading Republican critic of the president and husband of White House adviser Kellyanne Conway, noted, “The president has consistently encountered difficulty in hiring good lawyers to defend him.” Conway argued that Trump’s difficulty might be rooted in his history of shortchanging law firms he’s used, as well as the fact that he’s an erratic client who will say and tweet embarrassing things. Despite being the president of the United States, Trump is not a client any choosy lawyer would want to work with. This has left Trump with what Conway calls “an unimpressive crew” compared to the top-notch team Bill Clinton had for his impeachment.
But Conway’s theory only scratches the surfaces. On CNN’s website, Joe Lockhart, White House press secretary from 1998 to 2000 in the Clinton administration, came closer to the mark by arguing, “The President is deliberately creating a circus show bringing back some of the best acts from the last three decades. It seems he hopes to entertain his supporters, rather than defend his conduct. And the 40% of the country that still approve of Trump will be undoubtedly entertained.” Lockhart adds, “Rather than mount a defense of his conduct with the best legal team, he’s choosing a group mired in controversies including scandal, alleged corruption and misogyny.”
Turning politics into a circus has worked out well for Trump so far, so why not apply the same trick to impeachment? Trump thrives on chaos, on undermining not just norms but also the very possibility of reasoned discourse. Trump knows that in an anarchic situation, people revert to tribal loyalties: Republicans stick with their standard-bearer even as Democrats grow more incensed.
Having Starr and Dershowitz as his attorneys is a way for Trump to discredit the whole impeachment process by making sure that it will be nothing but a partisan circus. Starr guarantees the partisan part. Despite his tarnished tenure at Baylor and his Epstein connection, he remains a Republican hero for leading the impeachment of Clinton.
As for Dershowitz, he’s the clown every circus needs. As the man who literally wrote the book on Chutzpah, he’s willing to make any argument, no matter how absurd, with the hope that some of it will stick. As his former Harvard Law School colleague Lawrence Tribe noted, Dershowitz, “revels in taking positions that ultimately are not just controversial but pretty close to indefensible.”
Dershowitz has a long-standing record of defending presidents under siege. In 1974, he told a reporter, “I’m not happy seeing Richard Nixon’s gang being tried by blacks and liberals in the District of Columbia.” He made the same argument in 2017, claiming that Washington, “has an ethnic and racial composition that might be very unfavorable to the Trump administration.”
If Dershowitz is consistent in arguing that “blacks and liberals” cannot give Republicans a fair trial, he’s more flexible on other matters. On Sunday, Dershowitz told ABC News that abuse of power “is not within the constitutional criteria for impeachment.” He added that impeachment requires a crime and the House impeachment bill lists no crime. So even if everything in the impeachment bill is true, Trump should not impeached.
This novel position, which is at odds with not just mainstream constitutional theory but common sense, was contradicted by Dershowitz himself. Appearing on CNN in 1998, he said about impeachment, “It certainly doesn’t have to be a crime if you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty.”
This contradiction is not surprising, since Dershowitz is very much a gun for hire, willing to say anything to win a temporary tactical victory. In that same impudent spirit, Dershowitz has argued that even if Trump allowed Russia to annex Alaska, that would not be an impeachable offense. It’s this quality of amoral belligerence that surely makes Dershowitz attractive to Trump.
Trump knows that the fact that these men have damaged reputations won’t bother Republicans, who after all stuck by Brett Kavanaugh and Trump himself during trying moments. For Trump’s narrow political purpose of keeping the Republican coalition united in opposition to impeachment, Starr and Dershowitz are more than satisfactory.
But precisely because Trump has hired his lawyers with a partisan intent, Democrats shouldn’t be hesitant in going after his legal counsel for their genuine scandals. Impeachment, it can’t be underscored enough, is a political process as well as a legal one. In a courtroom, bringing up the scandals of the defense attorneys might not be relevant. But in a political process, it very much is.
Democrats should be willing to go after these lawyers in the same way they went after Trump for the Access Hollywood tape, his long history of alleged sexual misconduct, his employment of abusive figures like Rob Porter, and his appointment of Kavanaugh to the Supreme Court.
The thread that unites Trump with Starr and Dershowitz is something that is larger than impeachment: the Republican backlash against the #MeToo movement. Trump himself was one of the chief factors igniting #MeToo. The current wave of political mobilization against sexual violence was sparked in part by the fact that Trump was elected president despite the Access Hollywood tape and the many allegations of sexual harassment and assault made by more than 20 women against him. Trump’s response to #MeToo has been to double down on male privilege, evident in the way he stood by Kavanaugh. Both Starr and Dershowitz should properly be seen as #MeToo villains. Leaving aside his actions at Baylor, during the Clinton impeachment Starr treated Monica Lewinsky with haughty disdain and ran roughshod over her privacy in order to target the president. Dershowitz has written a book denouncing what he sees as the excesses of the #MeToo moment.
In choosing Starr and Dershowitz to represent him, Trump is continuing his reflexive scorn for #MeToo, a disdain that he’s made a key part of Republican politics. In doing so, he’s given an enormous gift to his opponents.