The Case Against the Democratic House Impeaching Trump

by Alan Dershowitz

  Today, fair-weather civil libertarians are unwilling to give President Trump, who they regard as the devil, the “benefit of law” and civil liberties. Consider the issue of criticizing Special Counsel Robert Mueller. Any criticism or even skepticism regarding Mueller’s history is seen as motivated by a desire to help Trump.

  Mueller was an assistant US attorney in Boston, the head of its criminal division, then head of the criminal division at the main Justice Department, and then FBI director during the most scandalous miscarriage of justice in the FBI’s modern history. Four people were framed by the FBI in order to protect murderous gangsters working as FBI informers. An FBI agent, who is now in prison, was tipping off crime boss Whitey Bulger as to who might testify against him so that those individuals could be killed.

  Those tips later enabled Bulger to escape and remain on the lam for sixteen years. What responsibility, if any, did Mueller—who was in key positions of authority and capable of preventing these horrible miscarriages—have in this sordid incident? No less a legal figure than Judge Mark Wolf, a former prosecutor who conducted extensive hearings about this entire mess, made the following findings:

  The files relating to the Wheeler murder, and the FBI’s handling of them, exemplify recurring irregularities with regard to the preparation, maintenance, and production in this case of documents damaging to [Stephen] Flemmi and Bulger. First, there appears to be a pattern of false statements placed in Flemmi’s informant file to divert attention from his possible crimes and/or FBI misconduct …

  Second, contrary to the FBI’s usual policy and practice, all but one of the reports containing … allegations against Bulger and Flemmi were not indexed and placed in an investigative file referencing their names. Thus, those documents were not discoverable by a standard search of the FBI’s indices … Third, when documents damaging to the FBI were found by the Bureau, they were in some instances not produced to the defendants or the court at the time required by the court’s orders …

  Judge Wolf also referenced what Mueller may or may not have known of two murders Bulger committed while acting as an FBI informer, writing:

  The source also claimed to have information that Bulger and Pat Nee had murdered Halloran and Bucky Barrett. The source subsequently said that there was an eyewitness to the Halloran shooting who might come forward, and elaborated, “There is a person named John, who claims he talked to Whitey and Nee as they sat in the car waiting for Halloran on Northern Avenue. He sits in a bar and talks about it. He saw the whole operation.”

  He continued, “The source added that the person providing the information to the source ‘will be willing to talk to you soon.’ On Feb. 3, 1988, Weld directed Keeney to have the information that he had received sent to the United States attorney in Boston, Frank McNamara, and to the strike force chief, Jeremiah O’Sullivan. Weld added, ‘Both O’Sullivan and Bob Mueller are well aware of the history, and the information sounds good.’” Mueller at this time was assistant US attorney in Boston.

  It is widely believed among Boston law enforcement observers that the FBI was not really looking for Bulger during the years that Mueller was its director and that the FBI was fearful about what Bulger would disclose about his relationship with agents over the years. It took a US Marshals officer to find Bulger, who was hiding in plain view in California.

  Much of this and other details surrounding the scandal have been reported by Fox News and in other media accounts. Recently, Nancy Gertner, a former federal judge and civil libertarian, rushed to Mueller’s defense in a New York Times opinion column, declaring “without equivocation” that Mueller had “no involvement” in the massive miscarriage of justice. Her evidence is the lack of evidence in the files.

  Yet, no civil libertarian should place such great trust in government files, especially in light of Judge Wolf’s findings. They should join my call for an objective investigation by the Justice Department’s inspector general before they assure the public “without equivocation” that Mueller had absolutely “no involvement.”

  Moreover, new information has been uncovered suggesting that both Mueller and his deputy may have had a role in keeping the innocent defendants in prison. And Gertner herself, when she was a judge, characterized the position taken by the FBI as “chilling.” Mueller was director of the FBI at that time.

  But the “get Trump at any cost” partisans have rejected my call for an investigation out of fear that it may turn up information that might tarnish the image of the Special Counsel who is investigating Trump. Instead they criticize those of us who point out that Mueller was “at the center” of the Justice Department and FBI when this miscarriage of justice occurred.

  All civil libertarians should want the truth about this sordid episode—and Mueller’s possible role—regardless of its impact, if any, on the Trump investigation. Mueller, too, should welcome an objective investigation, which might eliminate any question about his role in this travesty. Yet, as I have written previously, for too many former civil libertarians, the hope of getting Trump trumps civil liberties.

  It is ironic to see many right-wingers criticizing overreach by law enforcement, while many left-wingers now defend such overreaching. Hypocrisy and selective outrage abound, as neutral principles take a back seat. Conservatives used to say “a conservative is a liberal who has been mugged.” I would respond that “a liberal is a conservative who is being audited or whose kid was busted for pot.”

  Today, a civil libertarian is a conservative whose candidate is being investigated, while a “law and order” type is a liberal who wants to see Trump charged or impeached. I am a liberal who voted against Trump but who insists that his civil liberties must be respected, for all of our sakes.

  Does the President Have the Right to Expect Loyalty from His Attorney General?17

  Recent news reports describe the president chastising Attorney General Jeff Sessions for disloyalty. Critics insist that the president has the right to demand loyalty of every other member of his cabinet but not of the attorney general. The attorney general is different, these critics insist, because he is the chief law enforcement officer of the United States. The Atlantic’s David A. Graham, for example, criticized Trump’s demand for unconditional “loyalty,” saying that, “for Trump, there is only one loyalty: to the president himself. When his aides and staffers make the mistake of following any other principle—rule of law, standard ethics policies, US alliances—that might conflict with the principle of loyalty to Trump, the president becomes enraged.”

  Well, the issue is far more complex, especially when it comes to the office of attorney general. The complexity results from a fundamental mistake the Framers of our Constitution and legal system made at the founding of our nation. Most democracies divide the role of our attorney general into two distinct offices: the first, often called the minister of justice, is an advisor to the chief executive. His or her role is to be loyal to the president or prime minister. He or she serves at their will and is part of the governing executive. The president is absolutely entitled to demand complete loyalty from his minister of justice.

  Then there is a second office, sometimes called director of public prosecution, chief prosecutor, or attorney general. That office, and the person who holds it, is supposed to be completely independent of the executive. Indeed, it is supposed to serve as a check on the executive. No chief executive is entitled to expect loyalty from the chief prosecutor, especially if that prosecutor is investigating him or his colleagues. The chief executive is entitled not to loyalty, but to independence, integrity, and fairness.

  We are one of the few Western democracies that mistakenly merged these roles into one. Our attorney general is supposed to advise the president politically, as Sessions has done with regard to immigration reform and other matters. But at the same time, the attorney general is supposed to be the head law enforcement officer of the United States—the chief prosecutor. This conflation of roles inevitably creates a schizophrenic attorney gener
al with conflicting loyalties and obligations. It is because of this inherent schizophrenia that our country has had to suffer the appointment of special counsel, independent prosecutors, and the like. I say “suffer” because even the strongest advocates of these artificial positions concede that they operate outside of the usual prosecutorial role. We wouldn’t need them if we adopted the English or the Israeli approach, which totally separates the role of political advisor from the very different role of chief prosecutor. So, don’t blame Trump alone for demanding loyalty from his attorney general. Every president expects that. John Kennedy appointed his brother; Ronald Reagan appointed his personal lawyer; Jimmy Carter appointed his close friend; and other presidents have appointed political loyalists precisely in order to be assured of complete loyalty.

  The system should be changed. The Justice Department should be broken up into two completely separate agencies, with two separate heads: the minister of justice would be a loyal political advisor to the president and a member of his cabinet, while the director of public prosecution would be completely independent and not a member of the cabinet. This separation will not be easy to achieve. But it may be possible, without a constitutional amendment, if Congress and the courts have the will to do it.

  The Supreme Court has held that the appointment of an independent prosecutor does not violate the constitutional separation of powers or infringe on the executive authority of the president. Under that controversial precedent, Congress may be empowered—though it is far from certain—to establish a permanent independent prosecutorial authority outside of the current Justice Department structure. The president would almost certainly still have to make the appointment of the permanent prosecutor, but it could be for a term of years that transcends any presidential incumbency. This was the idea behind the appointment and removal of the director of the FBI. Obviously, that did not prevent President Trump from firing Director Comey, but he did have to pay a heavy political price for that decision. The same would be true if a president fired the permanent prosecutor in a situation where he was investigating the president or his associates.

  Under our constitutional structure there is no perfect cure for the mistake made by our founders in merging the two incompatible goals of the current attorney general: that of political advisor to the president and that of independent chief prosecutor. But we can perhaps improve the situation.

  The Nunes FISA Memo Deserves More Investigation. Time for a Nonpartisan Commission18

  The memo made public by House Republicans on Friday, February 2, 2018, accusing the FBI and Justice Department of abusing their surveillance powers in investigating a former Trump campaign advisor constitutes probable cause for further investigation.

  The memo purports to describe what is in the Foreign Intelligence Surveillance Act (FISA) application that resulted in wiretap warrants being issued against Republican operatives. It is, of course, a secondhand, hearsay account of what is actually in the application.

  Democratic members of Congress have been quick to point out that they see matters differently and that the Republican memo leaves out salient information.

  So, let the Democrats present their version, which will also be secondhand and hearsay. It will help to level the playing field, but it will not provide the American public with a firsthand look at what was presented to the FISA court. Subject to real needs of national security, the American public should see a redacted version of the actual FISA application so that we can judge for ourselves whether it unfairly omitted important facts, including the source of the so-called Steele Dossier, which made allegations of misconduct against the Trump campaign, and the credibility of its author, a former British spy.

  The Republican memo standing alone raises some serious questions about the process by which the warrants were obtained from the FISA court. The Democratic memo, if it is forthcoming, may purport to answer some of those questions. But it will never be able to answer them definitely without an objective assessment of the actual FISA application itself.

  This episode strengthens the view—expressed by me from day one of the investigation of Russian meddling in the 2016 presidential election—that the entire enterprise of appointing a special counsel was misguided. Instead, Congress should have created a nonpartisan commission of objective experts to investigate the entire issue of Russian involvement in the election and other claims made by either party about any unfairness surrounding it.

  Nor are congressional committees an adequate substitute for a nonpartisan commission. Congressional committees by their very nature are highly partisan, as evidenced by the dueling accounts of the FISA application.

  It’s not too late for Congress to create such a commission, because the American public has lost faith in the objectivity of congressional committees. Many Americans, though certainly not all, have also lost faith in the investigation currently being conducted by Special Counsel Robert Mueller.

  Mueller himself continues to be held in high regard by most Americans, but many of his underlings are widely regarded as partisan. In a presidential investigation, that is inexcusable.

  Mueller did the right thing by reassigning FBI agent Peter Strzok after his anti-Trump communications with his girlfriend were revealed. But Strzok should have recused himself from the Clinton investigation based on his own knowledge of his bias against Trump.

  The Republican memo just released should not be considered the last word on the issue. It is the opening salvo by Republicans. The Democrats are responding in kind. Both sides have partisan agendas. Now it is time for the American people to have their interests considered.

  As Supreme Court Justice Louis Brandeis once put it: “Sunlight is the best disinfectant.” The corollary is that overclassification keeps the infection spreading. Let the FISA application be declassified, with appropriate redactions, and let the public interest in the integrity of our law enforcement agencies be served.

  Trump Is Right: The Special Counsel Should Never Have Been Appointed19

  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.

  As I’ve said many times before, 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. This is what other democracies, such as Great Britain and Israel, do in response to systemic problems. The virtue of such a commission is precisely the nonpartisan credibility of its objective experts, who have no political stake in the outcome.

  Such a commission could have informed the American public of what Russia did and how to prevent it from doing it again. It would not seek partisan benefit from its findings, the way congressional committees invariably do. Nor would it be searching for crimes in an effort to criminalize political sins, the way special counsels do to justify their existence and budget. Its only job would be to gather information and make recommendations.

  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 en
hance 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. 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 hyper-partisanship, 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.