Commentary: Big Tent Ideas

ALAN DERSHOWITZ: The Courts Were Never Supposed To Decide Our Elections

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Hamilton called the judiciary the ‘least dangerous branch,’ but that was oh-so 18th century.

Alexander Hamilton described the judiciary as “the least dangerous branch,” because it has the power of neither the sword nor the purse. It was supposed to play an important but limited role in our governance, as part of the system of checks and balances, but in recent years — especially since Bush v. Gore in 2000 — the courts have begun to play far too important roles in determining the outcome of elections. This certainly seems to be the case today, in the run-up to the 2024 presidential election.

Some radical Democrats are trying to use the courts to deny President Trump the right to appear on state ballots. This will probably fail, but not without causing considerable confusion in the early primaries. If it were to succeed, it might well divide the country beyond repair, as millions of Americans would be denied the right to vote for the candidate of their choice. The 14th Amendment is being distorted by partisans to achieve partisan results.

In the future, have no doubt that partisans on the other side will try to manipulate the 14th Amendment to achieve their political results. The end result would be a direct attack on democracy. Then there are the criminal cases against Trump in New York, Georgia, Florida, and the District of Columbia. Whether intended or not, these cases threaten to have a significant impact on the coming presidential election.

It is likely, though not certain, that — before the election — Mr. Trump will be convicted in some of these cases. Yet any reversal of the convictions that might happen on appeal would probably not occur until after the election. The thumb of the judiciary would therefore be on the electoral scale.

There is also the issue of presidential immunity which is currently on appeal and may end up before the Supreme Court. That case will determine whether and to what extent Mr. Trump can be tried for his alleged role in the January 6 events and other challenges to the 2020 election.

These cases are likely to have an impact on Mr. Trump’s electoral strategy. They will keep him off the trail during the height of the election season, because criminal defendants are generally required to be present during their trials. The trials end in the late afternoon and Mr. Trump will surely campaign as he is leaving the courthouse, as well as before he enters it.

There will be other legal proceedings as well that may impact the 2024 election. These include the trials and tribulations of President Biden’s son Hunter, whose cases will garner attention during the electoral season.

Elections should not be influenced so significantly by court cases. Never before in our history has the judiciary played so central a role in an election. It makes more sense for voters to cast their ballots on issues relating to the economy, foreign policy, immigration, abortion, and other matters that affect them and their families.

It’s contrary to the spirit of our elections for the focus to be on legal and constitutional issues, many of which are difficult to understand, thus making it easier for politicians to use sound bites instead of thoughtful arguments.

What, though, is the alternative? If a presidential candidate, or the son of the incumbent, has arguably engaged in criminal conduct, investigations are in order, and if the evidence supports it, prosecutions. Yet it’s wrong for prosecutors to use the criminal justice system to achieve political ends.

Criminal prosecutions should not be brought against candidates running for office, unless the evidence is overwhelming. Most crimes have statutes of limitations which would allow the deferring any prosecution until after the election. Prosecutorial discretion should be exercised with sensitivity toward the potential impact on elections.

We live in an age where every aspect of government, especially the criminal justice system, has become weaponized by both sides to achieve partisan political goals. This trend does not serve the interest of the American public, but it will be difficult to stop it or even slow it down, since tit-for-tat retaliation has also become an important part of this partisan warfare.

Let us at least understand that the framers of our constitution did not intend the judicial branch to play so large a role in the political process of electing our president.

Alan Dershowitz is professor emeritus at Harvard Law School and the author of “Get Trump,” “Guilt by Accusation” and “The Price of Principle.” Andrew Stein, a Democrat, served as New York City Council president, 1986-94. This piece is republished from the Alan Dershowitz Newsletter.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.