Dershowitz: Let Mueller be our last special counsel ever

Amen, brother Dersh. In a Fox News segment last night, Harvard Law professor Alan Dershowitz vented his frustrations over Robert Mueller’s statement on Wednesday, but his anger goes beyond Mueller’s performance. This latest special-counsel episode demonstrates why that particular office has to be eliminated, and its offense to constitutional order never resurrected again no matter the circumstances.

Of course, this argument could have been used after the previous special counsel … and the special counsel before that …

Well, he was one 100 percent right. Mueller should have come to a conclusion. I think if he had come to a conclusion, it would have been there was no obstruction of justice. But he was probably pressured by his staff members not to come to that conclusion. He should have come to that conclusion and I think the only thing Barr should have said that he didn’t say is that there should no longer ever be any special counsel. The Mueller investigation puts the final nail in the coffin of Special Counsel, special prosecutors, the Attorney General could do this himself. There are staff people, there are civil servants, there are full-time line prosecutors everything that was done here could be done by them.

When the special prosecutor, the special counsel in this case says I couldn’t have indicted the President anyway according to the Constitution, then what was his investigation all about. As Judge Ellis pointed out in the Manafort case, they weren’t interested in Manafort, they were interested in squeezing Manafort so that he could sing maybe even compose against President Trump, but it turned out there was nothing against President Trump. There was no illegal collusion. There was no collusion of any kind with the Russians and the investigation should have ended the day that decision was made, but it continued on and on and on with collateral crimes many of which were not even committed and others of which if it were committed could have been easily prosecuted by ordinary prosecutors. So, I think we’re seeing the death knell of the special counsel’s office.

Dershowitz aims much of his ire at Mueller in particular, but that’s a little misdirected. In the full experience of special counsels, Mueller ended up being among the more judicious. He didn’t drag out the investigation forever, he kept leaks to nearly zero, and his investigation was comparatively limited. It could have been worse, and we’ve seen worse from his predecessors.

In the end, though, Mueller still ended up where all other special counsels or independent prosecutors ended up: with a handful of convictions on process crimes, and otherwise empty. Even just on practical terms, special counsels don’t deliver, even with their expanded authorities and limited accountability.

However, the problems of special counsels go beyond the practical. Not for the first time, the appointment of a special counsel usurped the congressional function of oversight, and not for the first time with Congress’ rabid-if-tacit approval. Dershowitz is correct that the Department of Justice could easily have investigated Russia collusion without Mueller, even after James Comey got fired, but Congress should have taken up the question of obstruction itself if it intended to use it for impeachment.

Instead, members of Congress actively and publicly cheerleaded for an inferior Article II officer to help them make their case for impeaching the superior Article II officer, namely the president. They demanded special laws to cut that inferior Article II officer from any accountability within the Article II branch while still leaving in place his plenary prosecutorial powers. In terms of constitutional protections, that was insane.

That may be why Dershowitz thinks the Supreme Court would intervene in a Mueller-driven impeachment drive, although he doesn’t get too detailed about that hunch. Laura Ingraham remains justifiably skeptical:

DERSHOWITZ: And also, the case would get to the Supreme Court very likely if the Congress adopted the Maxine Waters approach and put themselves above the law and try to impeach any President without evidence of high crimes and misdemeanors. The Supreme Court might very well have jurisdiction to decide that case. Two former justices said that in concurring and dissenting opinions, and I suspect there might be a majority today in the Supreme Court. If you had an overt attempt to subordinate the Constitution, subvert the constitution and use the impeachment power as a way of reversing an election. That’s not what the framers had in mind.

INGRAHAM: Alan, I have a question.

DERSHOWITZ: They rejected explicitly that concern.

INGRAHAM: Alan how would it get to the Supreme Court though? How would it ever get there?

DERSHOWITZ: Well, if the President were to be impeached, his lawyers would bring a case to the Supreme Court seeking dismissal of the indictment essentially, dismissal of the impeachment. Remember also—

INGRAHAM: But don’t they decided – wait, they decide it’s a political question now. You think John Roberts and these guys are going to want to get–

DERSHOWITZ: It’s not a political question. It’s not political question when the constitute .–

INGRAHAM: But I worry that John Roberts kind of forward liberals would say that. I’m worried about that.

DERSHOWITZ: Well, remember that John Roberts presides over the trial in the Senate. And if I were the lawyer for the President, the first motion I would make would be to the Chief Justice saying this impeachment has to be dismissed because it doesn’t follow the terms of the Constitution. It’s not a political question when you’re asking justices of the Supreme Court to apply the Constitution, it goes back to Marbury vs. Madison. When Congress acts in violation of the Constitution, the Supreme Court is ultimate arbiter.

It’s much more likely to go back to Nixon v US et al, where the Supreme Court already settled this question. Led by William Rehnquist, the court ruled that impeachment was a political process, not strictly a statutory process, and that the federal judiciary has no role in moderating it. The extant case involved an impeached federal judge, but as Rehnquist wrote, the problems for court intervention become even worse when the target is the president:

Justiciability is also refuted by (1) the lack of finality inherent in exposing the country’s political life–particularly if the President were impeached–to months, or perhaps years, of chaos during judicial review of Senate impeachment proceedings, or during any retrial that a differently constituted Senate might conduct if its first judgment of conviction were invalidated, and by (2) the difficulty of fashioning judicial relief other than simply setting aside the Senate’s judgment of conviction.

Besides, can anyone imagine the Supreme Court intervening in this process even apart from the personalities involved? They’d stay well out of an impeachment, and they’d be correct to do so.

Dershowitz may be wrong on this point, but he’s absolutely correct on special counsels. We’ve tried them for more than forty years in various configurations, and they are without a fail an utter disaster. Mueller might be less worse than others, but that doesn’t make his effort any less corrosive. It’s well past time to repeal this statute and force Congress to take the political risk in doing its own work.