Dershowitz: I Was Wrong About Mueller, Who Just Shamefully Proved His Partisan Agenda

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Posted: May 30, 2019 2:15 PM
Dershowitz: I Was Wrong About Mueller, Who Just Shamefully Proved His Partisan Agenda

Liberal law professor Alan Dershowitz was not impressed by Wednesday's public statement from Robert Mueller, calling it a revealing indication of the former Special Counsel's partisan rooting interests.  Dershowitz, who has been a frequent critic of many fellow liberals' legal and investigatory tactics against President Trump, penned on op/ed for The Hill entitled, "Shame on Robert Mueller for Exceeding His Role."  He writes that Mueller overstepped his bounds as a prosecutor, lambasting Mueller for having erred even more seriously than fellow ex-FBI Director James Comey -- adding that he can no longer defend Mueller as a nonpartisan actor:

Comey was universally criticized for going beyond his responsibility to state whether there was sufficient evidence to indict Clinton. Mueller, however, did even more. He went beyond the conclusion of his report and gave a political gift to Democrats in Congress who are seeking to institute impeachment proceedings against President Trump. By implying that President Trump might have committed obstruction of justice, Mueller effectively invited Democrats to institute impeachment proceedings. Obstruction of justice is a “high crime and misdemeanor” which, under the Constitution, authorizes impeachment and removal of the president...Until today, I have defended Mueller against the accusations that he is a partisan. I did not believe that he personally favored either the Democrats or the Republicans, or had a point of view on whether President Trump should be impeached. But I have now changed my mind. By putting his thumb, indeed his elbow, on the scale of justice in favor of impeachment based on obstruction of justice, Mueller has revealed his partisan bias. He also has distorted the critical role of a prosecutor in our justice system.

He concludes, "No prosecutor should ever say or do anything for the purpose of helping one party or the other. I cannot imagine a plausible reason why Mueller went beyond his report and gratuitously suggested that President Trump might be guilty, except to help Democrats in Congress and to encourage impeachment talk and action. Shame on Mueller for abusing his position of trust and for allowing himself to be used for such partisan advantage." One of the most common and pointed critiques of Mueller's unexpected performance is that he inverted the role of a prosecutor on the question of guilt vs. "exoneration." Here's a quote from Mueller's question-free press conference: “If we had had confidence that the president had clearly not committed a crime we would have said so.” Charles Cooke of National Review responds:

That’s not how it works in America. Investigators are supposed to look for evidence that a crime was committed, and, if they don’t find enough to contend that a crime was a committed, they are supposed to say “We didn’t find enough to contend that a crime was committed.” They are not supposed to look for evidence that a crime was not committed and then say, “We couldn’t find evidence of innocence." I understand that Mueller was in an odd position. I understand, too, that this wasn’t a criminal trial. But I don’t think those norms are rendered any less important by those facts...If a person doesn’t have enough evidence that someone committed a crime to contend that a crime was committed, he is obliged to presume his innocence. “Not exonerated” is not a standard in our system, and it shouldn’t be one in our culture, either.

At The Federalist, Sean Davis cites some of the relevant policies and guidelines Mueller (and Comey) violated in their public remarks about high-profile probes into political figures, neither of which led to resulting criminal charges:

DOJ guidelines expressly prohibit the actions of both Comey and Mueller in naming and shaming individuals who were never formally charged with any wrongdoing. “As a series of cases makes clear, there is ordinarily ‘no legitimate governmental interest served’ by the government’s public allegation of wrongdoing by an uncharged party, and this is true ‘regardless of what criminal charges may . . . b[e] contemplated by the Assistant United States Attorney against the [third-party] for the future,'” states DOJ’s formal policy manual on the duties of federal prosecutors and principles of federal prosecutions. Nationwide bar rules governing all practicing attorneys in the United States also explicitly prohibit Mueller’s display during Wednesday’s press conference. “The prosecutor in a criminal case shall … refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused,” states Rule 3.8(f) of the American Bar Association’s rules of professional conduct. Multiple federal agents and prosecutors reached out to The Federalist after Mueller’s press conference to express dismay at the former FBI director’s behavior.

"I’d have been crucified under this rule for a ‘not innocent’ comment about an uncharged party," one former federal prosecutor told Davis in the piece. "I literally cannot fathom holding a press conference to say that an uncharged person was not innocent," the source said.  To be sure, neither the Hillary emails probe nor the Trump-Russia investigation qualifies as "ordinary."  And doesn't the government implicate people and entities in wrongdoing without filing charges by naming "unindicted co-conspirators" on a regular basis?  I'm actually pretty open to arguments that treating the findings of the Mueller probe like any run-of-the-mill federal investigation would have been unrealistic, and probably misguided.

But Mueller did seem to reveal an agenda by highlighting certain portions of his report, while choosing not to mention others.  He also declared that the written product should 'speak for itself,' then declined to let it do so by speaking for it in a manner that many observers from across the partisan spectrum viewed as an effective impeachment referral, having failed to identify chargeable offenses.  Mueller should answer questions about his decisions on this front, as well as the glaring discrepancy he identified between his version of events and the sworn testimony of the Attorney General on a critical issue regarding the lack of recommended obstruction charges.  As for the official opposition party, this by and large captures my sentiments: