Alan Dershowitz and the Mueller Report

April 23, 2019

Alan Dershowitz and the Mueller Report

 

Alan Dershowitz is a self-defined “liberal-Democrat”. He doesn’t hide the fact he voted for Hillary in 2016 or that he voted for Dems in the latest mid-term election. So why is he the target of so much liberal angst right now? Because he dared write an introduction to the Mueller Report, published yesterday, and did not jump on the bandwagon by proclaiming Trump not only must be impeached but that he was guilty of all allegations against him.

How dare he!

Professor Dershowitz dares because he is more than a liberal-Democrat. He dares because he refuses “to substitute partisan wishful thinking for neutral analysis of the law and facts.” (loc. 266*). That’s the key to the difference between how he looked at the report and how others–the Washington Post, for example–have. Not only did Professor Dershowitz go into this with the goal of doing a neutral analysis, he did so looking at both the applicable law and the facts.

From the very first paragraph, he makes clear he isn’t out to grind a political axe of any sort. He tackles the issue of the redactions immediately, noting they were “minimal” and were “required by law”. Then he reminds everyone that none of the redactions were made because of executive privilege. In fact, he points out President Trump refused to claim executive privilege on anything relating to the investigation.

Hmm, that’s not the action of a man with anything to hide, is it?

The report presents “no evidence of any criminal behavior by President Trump or his campaign with regard to Russia.” (loc. 45) But, as Dershowitz points out, while Trump won’t be charged with obstruction of justice, he wasn’t exonerated either. This lack of a finding in one direction or another, the professor feels, was a basic cop-out on Mueller’s part. Mueller’s job was to make this sort of difficult decision and he failed to do so.

Hmm, so that does play into the liberal talking points. So why are they not applauding Dershowitz? Oh, let me count the ways.

To start, Dershowitz writes that Attorney General William Barr’s statement that:

the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense. Our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.” (loc. 62)

Oh, my. There’s that pesky little problem of the the law and our wonderful Constitution. As Dershowitz said, that one statement from the AG “constitutes a complete legal exoneration”.

And now we see why the Dems are not happy with how one of their own is speaking out against the approved narrative.

But it gets better–or worse, depending on your point of view.

Dershowitz writes Mueller conducted a “generally fair prosecutorial investigation of the facts.” And there’s another word the Dems would prefer we forget about–facts. Then he condemns Mueller for failing to do his job by not coming to a clear decision about the obstruction charges.

You have to admit, had Mueller done so, we wouldn’t be in the situation we’re in now. Sure, the Dems would still be digging–all the way to China if necessary–to try to find something on Trump. But there would be a concrete finding and much of the “what ifs” and “why nots” we’re seeing would have been put to rest.  

Of course, the Dems are hanging their hats on the 14 indictments that came out of the investigation. As Dershowitz points out, those indictments are smoke but not fire. The indictments fall into three basic categories: financial crimes committed by people in Trump’s “sphere” before he became president; process crimes such as perjury which almost always come about when you have such a lengthy and complex investigation; and those indictments against Russian corporations and individuals, none of which will ever see the inside of a US courtroom.

The pull quote from this comes from Judge Ellis in the Paul Manafort trial. Speaking to the prosecutors, Judge Ellis said:

You don’t really care about Mr. Manafort’s bank fraud—what you really care about is what information Mr. Manafort could give you that would reflect on Mr. Trump or lead to his prosecution or impeachment.

“This vernacular to ‘sing’ is what prosecutors use. What you’ve got to be careful of is that they may not only sing, they may compose.” (loc. 80)

Despite this warning, the Dems continue to dig and threaten others within Trump’s inner circle with investigations–or worse–in their attempt to bring down the president.

Dershowitz makes an interesting comparison in the introduction between the Mueller Report and James Comey’s handling of the Clinton investigation in 2016:

Despite these conclusions [that there wasn’t sufficient evidence to charge Trump with collusion, etc.] , the public release of the report creates the same effect as what James Comey, then director of the FBI, improperly did in the Hillary Clinton case of 2016: announce the decision not to indict and then add a statement that she had been ‘extremely careless’ in using a private email server.” (loc. 88)

Where Dershowitz really deviates from the approved Democratic response to the Mueller Report comes with his discussion about whether there should have been a report or not. According to the professor, the answer is no. There should not have been a written report. He cites “long standing Department of Justice traditions”.

He also says a special counsel never should have been appointed. This is where he really goes off the rails, at least where the Democratic Party is concerned. To start, he says it would have been better for the prosecutors with the DoJ to have conducted the investigation. Then he points out, rightly so when you give it serious thought, that Rod Rosenstein, the Deputy Attorney General who appointed Mueller as special counsel, had at the very least a conflict of interest in doing so.

To start, Rosenstein was, according to Dershowitz, a “key witness” in the investigation into Comey’s firing (which goes to the obstruction charge). But it goes beyond that. Rosenstein could be seen as a potential defendant in such an investigation. The reason is because current law would prevent Trump from being charged with obstruction, at least at this time, if Mueller hd determined Comey’s firing was a criminal act. That means Rosenstein might be the only one who could be charged.

And yet, he didn’t recuse himself. Instead, he appointed a special counsel. That should have left to someone else to determine 1) if such action was appropriate and 2) who should be appointed if the action was warranted.

Another reason Dershowitz feels there should never have been a written report is that this was a criminal investigation. The example he gives is that of a prosecutor deciding whether to indict someone or not. When they do indict, they don’t give a written report. They simply present the case to the grand jury and, if they meet the evidentiary standard, get their indictment. They certainly don’t issue a written report to the public-at-large on why they decided not to indict. Oh, they might hold a press conference but there is no written report.

There is one caveat to what Dershowitz writes about the written report, one he points out. The DoJ requires special counsels to file a written report with the attorney general. But, as Dershowitz points out, there is nothing in the regulations that require the AG to make the report public.

Yes, the Democrats in Congress would have a fit, but they are already. Nothing short of Mueller condemning Trump and bringing him up on charges would have satisfied them. Their very actions after the report’s release proves that.

Dershowitz writes that, instead of a special counsel being appointed, Congress could have appointed a commission to hold public hearings into the matter. Of course, they’d have to hold some closed-door sessions to deal with “highly classified matters”. But, had this route have been taken, there would have been a transparency to the investigation that is lacking. The goal would have been to inform the public, not prosecute.

Or, as I like to say, not try to take down the presidency.

Of course the Dems would never agree to that. They bet all they had on the report bringing Trump down. It didn’t and now they are frantically scrambling to find something, no matter how tenuous, to give credence to theirs cries of outrage about the report and the fact Hillary isn’t our president.

Here’s the money quote from Dershowitz’s introduction and it explains so much about not only the reaction to the Mueller Report but about politics in general:

But in our age of hyper-partisan division, nobody seems to want the kind of objective, unbiased truth that an expert commission is tasked to find. Partisans want ‘Democratic truths’ and ‘Republican truths,’ ‘prosecutorial truths’ and ‘defense truths.’ That is why an expert commission was not established, and why an expert report based on all the evidence, was not issued.” (loc. 189)

Partisan politics, where the truth gets obscured in favor of the message.

Despite pointing out the weaknesses in the report, Dershowitz is being pilloried in some circles because he hasn’t stuck with the narrative. Too many on both sides of the aisle have forgotten that our criminal justice system is based on laws and has evidentiary requirements. They put too much emphasis on the court of public opinion and gladly place it ahead of our constitutional rights and privileges.

Professor Dershowitz has more to say about the report. I highly suggest you read it for yourself. He has done a much better job of trying to present an unbiased look at it than anyone I’ve seen to date. It is certainly much less slanted than the Washington Post’s treatment of the report.

I’ll leave you with this quote from near the end of his introduction:

Now it remains to be seen how this flawed report will be used and misused for partisan purposes. Already, some are calling it a ‘road map’ for impeachment or further partisan congressional investigations. That is precisely why it is so dangerous to civil liberties and the rule of law to release reports by special counsel detailing noncriminal wrongdoing by subjects of a one-sided investigation who were not charged.” (loc. 257)

One-sided because the “defense” was not allowed to cross-examine the “prosecution’s” witnesses. It was not allowed to present a counter to the witnesses interviewed or charged by the special counsel and his team.

We are a nation of laws, laws the liberals seem all too willing to toss to the wind in their efforts to get Trump out of the office. If that doesn’t terrify you, it should.