Given all the absurdities worthy of comment in the impeachment trial of President Donald J. Trump, history will probably overlook the appearance of the political philosopher John Rawls in Trump’s defense. The story of Rawls is not central to the trial of Trump. But the trial of Trump might tell us something about the story of Rawls.
On January 27, Trump’s lawyer Alan Dershowitz repeated in the Senate Chamber an argument that he had been making in public for more than a year: that a “colloquial” use of Rawls’s philosophy cautioned against Trump’s impeachment. Imagine, said Dershowitz, that the terms of the impeachment were the same—but that the President was a Democrat. Calling this the “shoe on the other foot test,” Dershowitz said that any Democrat who had objected to the impeachment of President Bill Clinton should be bound by that test to object to the impeachment of Trump.
Dershowitz has not yet explained why this test should not also apply to those Republicans who were gleeful in their pursuit of Clinton’s impeachment. Shouldn’t they, too, other-foot their shoes and allow Democrats to run roughshod with a Special Counsel? But equal application of the equalizing principle is not really Dershowitz’s aim. Mostly, he uses the “other foot test” to claim his own “nonpartisan” apprehension of justice: Dershowitz opposed Clinton’s impeachment. Now he opposes Trump’s impeachment. As, he implies, would Rawls.
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