Go figure that a man known as a skilled appellate defense attorney might have an animus against the idea of a roving prosecutor, but don’t let that keep people from hearing Alan Dershowitz out. He writes in The Hill that Congress should have seized the moment after the 2016 election by creating a bipartisan special commission to get to the truth of Russian interference and how to defend against it instead of demanding recusals and special counsels.
The Mueller probe, Dershowitz argues, compounded the damage that Russia intended to create in the first place:
In this case, the appointment of a special counsel has done more harm than good. It has politicized our justice system beyond repair. The FBI deputy director has been fired for leaking and lying. His testimony appears to be in conflict with that of the former FBI director as to whether the leaks were authorized. Messages by high-ranking FBI agents suggest strong bias against Trump. A tweet by the former CIA director reveals equally strong negative views of the president. Perhaps these revelations prove nothing more than that law enforcement and national security officials are human and hold political views like everyone else.
But these views are not supposed to influence their decisions. In our age of hyperpartisanship, the public has understandably lost confidence in the ability and willingness of our leaders to separate their political views from their law enforcement decisions. This is not all attributable to the appointment of the special counsel, but the criminalization of political differences on both sides of the aisle has certainly contributed to the atmosphere of distrust in our justice system.
The public has lost faith in the leadership of the Justice Department and the FBI. They don’t trust congressional investigative committees. They don’t know whom to believe when they hear conflicting accounts. There are leaks galore followed by denials of leaks. It’s a total mess. And what do we have to show for it? Just a handful of low-level indictments based largely on alleged crimes that are either unrelated or only marginally related to Russia’s attempt to influence our presidential election in 2016.
Dershowitz scored with at least one reader:
“Special Council is told to find crimes, whether a crime exists or not. I was opposed to the selection of Mueller to be Special Council. I am still opposed to it. I think President Trump was right when he said there never should have been a Special Council appointed because…..
— Donald J. Trump (@realDonaldTrump) March 21, 2018
…there was no probable cause for believing that there was any crime, collusion or otherwise, or obstruction of justice!” So stated by Harvard Law Professor Alan Dershowitz.
— Donald J. Trump (@realDonaldTrump) March 21, 2018
Dershowitz sets this up with an argument similar to what Andrew McCarthy has repeatedly written at The Corner about the nature and limitation of special counsels. The Department of Justice departed from the law when Rod Rosenstein established Mueller in this position by not specifying a crime to investigate. That requirement is supposed to prevent special counsels from going rogue, and was prompted by long experience in special counsels or independent prosecutors doing precisely that in almost every instance.
So why did Rosenstein give in to that pressure? In large part because, as Dershowitz writes in his column, Congress failed to step up and fulfill its own constitutional obligations, and instead pressured Rosenstein to act after Trump fired James Comey. Congress should have conducted the investigation itself and referred any criminal behavior back to the Department of Justice. It could have authorized its own independent prosecutor, although Trump could have tried to veto it. If the idea was to discover the truth, a bipartisan commission invested with Congress’ subpoena power would have worked much better, while the DoJ could still have gone after Paul Manafort independently on his unrelated crimes.
In this case, we have both a former prosecutor in McCarthy and a famous defense attorney in Dershowitz telling us both the same thing: roving inquisitors are a bad idea. They’re a result of Congress’ refusal to do its job. Maybe this time we’ll finally listen and get rid of special counsels altogether.
So how do we fix this problem now? Dershowitz tells Mueller to stop work immediately and demand Congress take responsibility:
Let Congress now appoint a nonpartisan commission to conduct a transparent investigation of Russia’s efforts to influence our elections. Let the special counsel suspend his investigation until the nonpartisan commission issues its report. If the report identifies crimes and criminals, there will be time enough to indict and prosecute. Right now, we need the nonpartisan truth, because we aren’t getting it from the special counsel.
Mueller would have to do that voluntarily, because no one in Congress will take action on their own despite all their handwringing over “constitutional crises.” If I were Dersh, though, I wouldn’t hold my breath waiting for that to happen.