Dershowitz: Trump is Right, the Mueller Probe Should Never Have Started in the First Place

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Posted: Mar 22, 2018 10:25 AM
Dershowitz: Trump is Right, the Mueller Probe Should Never Have Started in the First Place

This isn't the first time this liberal Harvard Law fixture has crossed his own party on Trump and alleged collusion (he's been increasingly vocal on other issues, too), and it probably won't be the last.  In an op/ed for The Hill, Alan Dershowitz argues that Robert Mueller's special counsel probe is doing a disservice to what ought to be the overarching national goal of thoroughly investigating the extent of Russia's meddling in the 2016 US elections -- and taking the requisite steps to ensure it doesn't happen again in the future.  A taste of his argument, which can be read in full here:

President Trump is right in saying that a special counsel should never have been appointed to investigate the so-called Russian connection. There was no evidence of any crime committed by the Trump administration. But there was plenty of evidence that Russian operatives had tried to interfere with the 2016 presidential election, and perhaps other elections, in the hope of destabilizing democracy. Yet, appointing a special counsel to look for crimes, behind the closed doors of a grand jury, was precisely the wrong way to address this ongoing challenge to our democracy. The right way would have been (and still is) to appoint a nonpartisan investigative commission, such as the one appointed following the terrorist attacks of 9/11, to conduct a broad and open investigation of the Russian involvement in our elections.

The vice of a special counsel is that he is supposed to find crimes, and if he comes up empty-handed, after spending lots of taxpayer money, then he is deemed a failure. If he can’t charge the designated target — in this case, the president — he must at least charge some of those close to the target, even if it is for crimes unrelated to the special counsel’s core mandate. By indicting these low-hanging fruits, he shows that he is trying. Maybe those lesser defendants will flip and sing against higher-ups, but the problem is that the pressure to sing may cause certain defendants to “compose,” meaning make up or enhance evidence in order to get a better deal for themselves. In this case, the appointment of a special counsel has done more harm than good. It has politicized our justice system beyond repair.

His concluding suggestion is for Mueller to voluntarily suspend his investigation and for Congress to appoint a bipartisan blue panel commission to dig into the Russia question. This idea will surely appeal to many Trump supporters, and has obviously pleased the president himself:


Reality check: The special counsel investigation isn't going anywhere until it's over.  There is a zero percent chance Congress will recommend that Mueller stop his work or initiate yet another investigation designed to supersede whatever Mueller and his team may be up to.  Regardless of one's thoughts on the efficacy of the special counsel model (many in the GOP are presently calling for another special counsel, mind you) Mueller is a top-flight professional whose integrity is renowned.  He's been on the job for many months, and any effort to derail his process or prevent his conclusions from coming to light will be widely viewed as a crisis-level development.  As I've written many times, once Mueller was put on the job, it became essential that he be allowed to finish that job.  Plus, the Senate Intelligence Committee is acting as the very sort of fact-finding, solutions-oriented bipartisan panel envisioned by Dershowitz.  Even if it's not a full-blown national commission, the partnership of Richard Burr and Mark Warner has been constructive -- to the point that even Donald Trump, Jr. has praised the committee's professionalism and focus.  As for the current (quasi-regular) wave of panic sweeping DC about Trump potentially firing Mueller, it sounds like Speaker Ryan has been hearing the same things Sean Hannity has:


When pressed on where those assurances came from, Ryan declined to get more specific than citing the administration.  Ryan and Hannity seem to be reading from the same page as the White House: Firing Mueller ain't happening.  On a related note, much to my chagrin, both the president and many of his loudest detractors have tied the dismissal of former FBI deputy chief Andrew McCabe to the Mueller controversy, even though the facts demonstrate that the two issues are separate.  Nevertheless, because this connection has been established in the realm of public perception, it's worth pointing out that current FBI Director Christopher Wray -- who is widely respected across the political spectrum -- has insisted that McCabe's termination was not related to politics:

“I am committed to doing things objectively and independently and by the book. I think that has to extend not just to our investigations, our intelligence analysis, but it also has to extend to personnel decisions and disciplinary decisions,” Wray told NBC News’ Pete Williams. Wray said he was not addressing the details of McCabe’s termination, but maintained that he was committed to not allowing politics to be a factor in decisions at the FBI. “I want to be careful about what I can say about the process” of McCabe’s firing, Wray said. “But I will tell you that my commitment to making sure that our process is followed, that it relies on objective input, and that most importantly, it is not based on political or partisan influence is something I am utterly unyielding on.”

Translation: McCabe was sacked for cause, based on misconduct, not due to political considerations or pressures.  It was done "by the book."  And he's seen the relevant evidence.  Would the anti-Trump forces fretting that McCabe's firing is "dangerous" or whatever like to question the honesty of Mr. Wray?  Would that not be exactly the sort of "attack on the FBI" for which they've been excoriating Trump, sometimes justifiably?  Or do the hacktastic new rules dictate that flagrant, self-serving double-standards are just fine, so long as your side is "winning" at any particular moment?