Defendants are brought to trial in the venue where they are indicted. Had the Virginia grand jury remained the only grand jury investigating the Russian connection, then any cases indicted by that grand jury would have been tried in Virginia. But now that a second grand jury has been impaneled in DC, any defendant indicted by that grand jury would be tried in front of a DC petit jury composed of citizens of the District.
Does this change of venue provide any tactical litigation advantage to the Special Counsel? Any honest lawyer, with experience as a prosecutor or defense attorney, would say yes. Why? Because this District of Columbia jury pool is different than the Virginia jury pool.
The District of Columbia jury pool will be overwhelmingly Democratic, by a ratio of close to 10 to 1. The Virginia pool is likely to be more diverse in its political affiliations, though probably still more Democratic than Republican. There is no guarantee, of course, that a Democratic juror would vote to convict an indicted member of the Trump administration, or that a Republican juror would vote to acquit. But in selecting jurors from among the pool, most prosecutors would favor Democrats and most defense attorneys would favor Republicans, all other things being equal. For that reason, most prosecutors would prefer to have such a trial in DC than in Virginia.
Then there is the third-rail issue of race, which prosecutors and defense attorneys do not like to talk about but which plays a significant role in jury selection, as the Supreme Court has recognized. A predominantly white jury can be a different institution than a predominantly black jury. Again, there is no one-to-one association; predominantly black juries convict black defendants and acquit white defendants all the time, and predominantly white juries acquit black defendants and convict white defendants as well. But to say that race doesn’t matter at all blinks away reality—or at least that’s what most experienced prosecutors and defense attorneys will tell you, when speaking off the record.
Prosecutors, who have wide discretion in choosing where a case will be tried, often consider the racial composition of the jury pool, along with other factors, in deciding the venue of a trial. That is simply a fact of life that few will dispute.
But when I made this factual point following Mueller’s decision to impanel the District of Columbia grand jury, Congresswoman Maxine Waters (D-CA) called me a racist. This is what she said:
What he [Dershowitz] is saying is “all of those black people are there and they don’t like Trump and so he’s not going to get a fair trial and so they should take it out of that jurisdiction. It shouldn’t be there to begin with.” I don’t like that, and I’m surprised that Alan Dershowitz is talking like that. We will not stand for it. We will push back against that because that is absolutely racist.
I responded as follows:
If I had said that race didn’t matter, she’d have called me a racist. She throws around the term so loosely and so inappropriately, and it weakens her credibility just by calling everybody a racist by calling me a racist, when she calls real racists racists, nobody is going to believe her…. Race matters and Maxine Waters ought to know that…. Being black doesn’t give you a license to call people racist any more than being Jewish gives you a license to call people anti-Semitic. So, she ought to understand that every criminal defense lawyer knows that race matters, ethnicity matters, political affiliation matters … she targeted me for no good reason; she ought to be ashamed of herself.
The man who taught me the most about the role of race in jury selection was my friend and colleague Johnnie Cochran, who would clearly have agreed with my point. Would Waters call Cochran a racist? I doubt it. When Cochran died in 2005, Maxine Waters introduced a bill in the House of Representatives proposing that Congress “honor Johnnie Cochran, Jr., for his service to the nation, his pioneering work as a lawyer, author, TV commentator, and philanthropist, and his personal integrity and professional excellence.”
Following my dispute with Waters, I then participated in a radio debate with former Judge Nancy Gertner, an old friend. I asked her whether she thought that I was a racist, confident that she would say, “No.” Instead, she said: “I refuse to answer on the grounds that it may tend to incriminate me.”
If I were generous, I would believe she meant that if she answered the question honestly—that of course, I’m not a racist for having made a correct statement—she would have incriminated herself among her partisan friends. But listeners interpreted her equivocal statement to mean that I am a racist for saying to the media what I have heard her say many times: that the racial composition of a trial jury always matters.
In an opinion piece for Cognoscenti, Gertner later wrote that since a Trump-related trial would not involve race, the racial composition of the jury wouldn’t matter because when it comes “to espionage and the selling of the presidency we are all Americans.” It would follow from this argument that an all-white jury in Mississippi, composed of “all Americans,” would be as fair to a black man charged with espionage as would a more diverse jury. Nonsense!
The National Association of Criminal Defense Lawyers—a group in which Gertner has been active—conducts seminars on “difficult topics,” such as race in jury selection. Does she regard this as racist?
Joel Cohen—a prominent former prosecutor and current defense lawyer—offered a critique of some of my arguments, while acknowledging that what I have said is accurate:
“[A]ny prosecutor, holding a glass of wine in his hand—in vino veritas—who might seek indictments arising out of the current investigation, would acknowledge that he would prefer a trial jury made up of black Democrats, rather than white and perhaps Republicans. And where the indicting grand jury sits is where the trial will ultimately take place.”
Cohen notes that prosecutors “often try to challenge black jurors potentially seated for a prosecution of a black defendant, believing a black juror would favor a black defendant (or a Jewish juror a Jewish defendant; a Russian juror—you get it).” He notes that while in 1986 the Supreme Court denounced this practice by prosecutors, this “old-school wisdom” still persists.
Reasonable people can disagree about whether Mueller took this “wisdom” into account in making this decision, and it is a fair subject for debate without name-calling. Cohen did this when he acknowledged that, while he disagrees with some of my arguments, I’m “not a racist. Period!” He aptly notes that the issues are nuanced, and that I am analyzing and appraising them as such: “[Dershowitz] is a commentator, and one willing (and inclined) to stick his neck out over controversial issues. And here, he is indeed speaking reality.” Gertner could have said something similar.
Gertner’s argument that I’m “irresponsible” because Mueller cannot respond is wrong. Grand jury secrecy does not prevent Mueller from explaining why he needed a second grand jury. I have heard Gertner criticize judges and prosecutors who could not respond.
If Hillary Clinton had been elected president and she were being investigated in Washington, and the prosecutor sought a second grand jury in Virginia, many of my Democratic friends would complain that moving the case from the overwhelmingly Democratic District of Columbia to more diverse Virginia would give the prosecutor an advantage. The double standard of people criticizing me for making an argument they would have made had the shoe been on the other foot should be obvious to everyone.
Flynn Plea Reveals Weakness, Not Strength, of Mueller Probe14
The charge to which retired Lieutenant General Michael Flynn has pleaded guilty may tell us a great deal about the Robert Mueller investigation.
The first question is why did Flynn lie? People who lie to the FBI generally do so because, if they told the truth, they would be admitting to a crime. But the two conversations that Flynn falsely denied having were not criminal. He may have believed they were criminal, but if he did, he was wrong.
Consider his request to Sergey Kislyak, the Russian ambassador to the US, to delay or oppose a UN Security Council vote on an anti-Israel resolution that the outgoing Obama admini
stration refused to veto. Not only was that request not criminal, it was the right thing to do.
President Obama’s unilateral decision to change decades-long American policy by not vetoing a perniciously one-sided anti-Israel resolution was opposed by Congress and by most Americans. It was not good for America, for Israel, or for peace. It was done out of Obama’s personal pique against Israeli Prime Minister Benjamin Netanyahu rather than on principle.
Many Americans of both parties, including me, urged the lame-duck Obama not to tie the hands of the president-elect by allowing the passage of a resolution that would make it more difficult to achieve a negotiated peace in the Mideast.
As the president-elect, Donald Trump was constitutionally and politically entitled to try to protect his ability to broker a fair peace between the Israelis and Palestinians by urging all members of the Security Council to vote against or delay the enactment of the resolution. The fact that such efforts to do the right thing did not succeed does not diminish the correctness of the effort. I wish it had succeeded. We would be in a better place today.
Some left-wing pundits, who know better, are trotting out the Logan Act, which, if it were the law, would prohibit private citizens (including presidents-elect) from negotiating with foreign governments. But this anachronistic law hasn’t been used for more than two hundred years. Under the principle of desuetude—a legal doctrine that prohibits the selective resurrection of a statute that has not been used for many decades—it is dead-letter. Moreover, the Logan Act is unconstitutional insofar as it prohibits the exercise of free speech.
If it were good law, former Presidents Reagan and Carter would have been prosecuted: Reagan for negotiating with Iran’s ayatollahs when he was president-elect, to delay releasing the American hostages until he was sworn in; Carter for advising Palestinian leader Yasser Arafat to reject former President Clinton’s peace offer in 2000–2001.
Moreover, Jesse Jackson, Jane Fonda, Dennis Rodman, and others who have negotiated with North Korea and other rogue regimes would have gone to prison.
So, there was nothing criminal about Flynn’s request of Kislyak, even if he were instructed to do so by higher-ups in the Trump transition team. The same is true of his discussions regarding sanctions. The president-elect is entitled to have different policies about sanctions and to have his transition team discuss them with Russian officials.
This is the way the New York Times has put it: “Mr. Flynn’s discussions with Sergey I. Kislyak, the Russian ambassador, were part of a coordinated effort by Mr. Trump’s aides to create foreign policy before they were in power, documents released as part of Mr. Flynn’s plea agreement show. Their efforts undermined the existing policy of President Barack Obama and flouted a warning from a senior Obama administration official to stop meddling in foreign affairs before the inauguration.”
If that characterization is accurate, it demonstrates conclusively that the Flynn conversations were political and not criminal. Flouting a warning from the Obama administration to stop meddling may be a political sin (though some would call it a political virtue), but it most assuredly is not a crime.
So why did Flynn lie about these conversations, and were his lies even material to Mueller’s criminal investigation if they were not about crimes?
The second question is why did Mueller charge Flynn only with lying? The last thing a prosecutor ever wants to do is to charge a key witness with lying.
A witness such as Flynn who has admitted he lied—whether or not to cover up a crime—is a tainted witness who is unlikely to be believed by jurors who know he’s made a deal to protect himself and his son. They will suspect that he is not only “singing for his supper,” but that he may be “composing” as well—that is, telling the prosecutor what he wants to hear, even if it is exaggerated or flat-out false.
A “bought” witness knows that the “better” his testimony, the sweeter the deal he will get. That’s why prosecutors postpone the sentencing until after the witness has testified, because experience has taught them that you can’t “buy” a witness; you can only “rent” them for as long as you have the Sword of Damocles hanging over them.
So, despite the banner headlines calling the Flynn guilty plea a “thunderclap,” I think it may be a show of weakness on the part of the Special Counsel rather than a sign of strength. So far, he has had to charge potential witnesses with crimes that bear little or no relationship to any possible crimes committed by current White House incumbents. Mueller would have much preferred to indict Flynn for conspiracy or some other crime directly involving other people, but he apparently lacks the evidence to do so.
I do not believe he will indict anyone under the Logan Act. If he were to do so, that would be unethical and irresponsible. Nor do I think he will charge President Trump with any crimes growing out of the president’s exercise of his constitutional authority to fire the director of the FBI or to ask him not to prosecute Flynn.
The investigation will probably not end quickly, but it may end with not a thunderclap, but several whimpers.
Trump Doesn’t Need to Fire Mueller—Here’s Why15
The Trump team is probably not going to seek to fire Special Counsel Robert Mueller. To do so would be to provoke Trump’s crucial supporters in Congress. Instead, they seem to be seeking to discredit him and his investigation.
This is apparently designed to achieve two possible results: the first is to put pressure on the Special Counsel to lean over backward in order to avoid any accusation of bias against Trump and his team. Mueller cares deeply about his reputation for integrity and will want to emerge from this process with that reputation intact. Accordingly, he may err—consciously or unconsciously—in favor of Trump in close cases so that the public will regard him as unbiased and fair-minded.
This is a classic tactic used by lawyers, athletic coaches, businesspeople, and others in how they deal with decision-makers. The great Red Auerbach, former coach of the Boston Celtics, once told me that when he screams loudly at officials, he generally gets the next close call in his favor. I have heard the same from baseball managers regarding balls and strikes.
This is a somewhat risky strategy in the context of law, because attacking the decision-maker could also backfire. Whoever thinks about using this tactic should understand the particular decision-maker against whom it is directed. Mueller seems like an appropriate target because of his concern for his reputation for fairness.
Even if this tactic were not to work, the attack on Mueller gives the Trump team some legal weaponry in the event of an indictment or a recommendation for impeachment. If a significant portion of the country believes that the Special Counsel was unfair, this could help in legal proceedings before judges or jurors.
So, attacking Mueller may appear to be a win-win tactic for the team—certainly a lot better than firing Mueller. Fortunately for the Trump team, Mueller has played into their hands by his sloppiness in conducting the investigation. He has been incautious with his choice of personnel—too many of them seem biased against Trump, not only by their backgrounds, but by their tweets and messages. As I have said, when you go after a president, you must be Caesar’s wife—above suspicion or reproach. Mueller seems to be failing the Caesar’s wife test. Moreover, the manner by which he acquired emails and other documents from the Trump transition team may raise some legal questions. The same may be true if he used the questionable dossier against Trump as a basis for securing warrants.
All in all, the Trump team is in a better position continuing to challenge Mueller than trying to get rid of him as the Special Counsel.
This is not a game, of course. Lives and liberty are at stake, but gamesmanship has always been part of our legal system, for better or worse.
Mueller can improve his situation in several ways. First, he should appoint an ethics expert to advise him—a former judge who is beyond reproach. Names like George Mitchell, Louie Freeh, and Justice David Souter come to mind. That advisor could assure him in going fo
rward there will be no more embarrassing revelations of messages or emails that create the appearance, if not the reality, of bias. He must also be more careful in how he obtains evidence. The last thing he should do is give ammunition to defense attorneys to challenge his evidence-gathering methods.
In setting out this analysis, I am not taking sides. I am simply sharing my fifty years of experience as a criminal defense lawyer who has seen the criminal justice system up close, warts and all. As James Madison wrote in The Federalist Papers, No. 51, “Perhaps everyone will agree that if we were all angels, no state would be necessary, and if angels were the governors, they would require neither internal nor external constraints to ensure that they governed justly.” Neither the Trump team nor the Mueller team are angels. They are human beings with human limitations. But an investigation of a president must be as close to angelic as any human endeavor can be. Otherwise the public will not have confidence in the results.
Desire to “Get Trump” Risks Death of Civil Liberties16
Just as the first casualty of war is truth, so too, the first casualty of hyper-partisan politics is civil liberties. I’ve regretfully asserted in previous essays that many traditional civil libertarians have allowed their strong anti-Trump sentiments to erase their long-standing commitment to neutral civil liberties. They are so desperate to get President Trump that they are prepared to compromise the most basic due process rights. They forget the lesson of history that such compromises made against one’s enemies are often used as precedents against one’s friends.
In the play and movie A Man For All Seasons, Robert Bolt put the following words in the mouth of Sir Thomas More in response to Roper asking if he would give the devil the benefit of the law: “When the last law was down, and the devil turned round on you, where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the devil benefit of law, for my own safety’s sake.”
The Case Against the Democratic House Impeaching Trump Page 10
