The Case Against the Democratic House Impeaching Trump

by Alan Dershowitz

  ROCAH: Absolutely. Absolutely.

  DERSHOWITZ: Absolutely not.

  DAN ABRAMS: Let’s be clear, though, about this issue of cooperating, right? He can’t cooperate on attorney-client matters, right? The president could invoke the privilege and say, “He’s not allowed to talk about private conversations that we had as attorney-client.”

  STEPHANOPOULOS: Separate from business matters.

  ABRAMS: Correct, correct, correct. But my point is there are going to be—everyone is sort of presuming that Michael Cohen could just flip on everything. He could just turn the president in if he decided to do that. If he decides to cooperate, there are going to be a lot of questions as to what he is actually allowed to disclose, when was he the attorney, when was he not the attorney, et cetera.

  And I think—I still think it’s unlikely that he is going to flip on him. I think—one of the things that struck me, and this is kind of a media thing, is immediately after the raid, Michael Cohen made phone calls to various mainstream media people. And it struck me that, gosh, for a team that shows such disdain for the mainstream media, why call these sorts of big figures in the mainstream media if—you know, if that’s the position …

  STEPHANOPOULOS: Well, Michael Cohen has always had deep ties to the …

  ABRAMS: Yes, he has.

  STEPHANOPOULOS: There’s no question about that.

  DERSHOWITZ: … this stuff matters and it doesn’t matter whether he likes the president or doesn’t like the president. What matters is the Sword of Damocles hanging over his head. Michael Milken, they told him they were going to indict his brother unless he pleaded guilty. Jonathan Pollard, they told him they were going to indict his wife. I can go down case after case after case …

  ROCAH: But that may be …

  DERSHOWITZ: … where the prosecutors …

  ROCAH: … involved in criminal activity.

  DERSHOWITZ: Well, of course, that’s the point. The point …

  ROCAH: But to say that the government threatens people’s relatives with the …

  DERSHOWITZ: I didn’t say no basis. I said they threaten relatives and then they create the basis. They wouldn’t otherwise go after these people. But they hold these people hostage. That’s what prosecutors do. Every defense attorney knows that. And to look in the camera and say that prosecutors don’t threaten relatives is to mislead the American public. Sorry.

  ROCAH: I disagree, obviously. But the other point is that, you know, cooperators—I just have to keep coming back to this. It’s—they’re not going to just take what he says at face value. They’re going to test it. It’s not going to be a case written down what Michael Cohen says.

  STEPHANOPOULOS: They already have some documents.

  ROCAH: Correct. They have lots of evidence. We know that because they got a search warrant. And the search warrant, you know, was based on probable cause to believe that …

  ABRAMS: But against Michael Cohen. I mean, we keep lumping in Cohen and Trump.

  STEPHANOPOULOS: That’s actually where we should be (INAUDIBLE) right now. The point is that Michael Cohen is now under serious threat. He has had this raid. We’ve even had the judge in the Stormy Daniels case say that it’s very possible, if not likely, he’s going to get indicted. We’ve seen another attorney he worked with flip as well.

  After a raid like this, the chances of indictment are quite high.

  ABRAMS: Very high. Very high that he’s going to be indicted. But we have to separate out the two. They got a warrant here not because there was information on Donald Trump that they wanted from Michael Cohen. They got the warrant because there was information on Michael Cohen potentially committing a crime.

  DERSHOWITZ: And if you believe that I have a bridge …

  ABRAMS: So, you’re actually going to say that a judge signed off on a warrant …

  DERSHOWITZ: Absolutely.

  ABRAMS: … to get to …

  DERSHOWITZ: You can get judges to sign off on warrants like Christmas presents.

  ABRAMS: To get information on his client? So, they signed off on a warrant saying, we want information on his client, not on him?

  DERSHOWITZ: There’s no way in which they would go after Michael Cohen if they weren’t interested in his client. They’re interested in his client in two different ways. Number one …

  ABRAMS: Because there’s no way he could have committed a crime by himself.

  DERSHOWITZ: He might have. But they wouldn’t have even looked at what he was doing if he weren’t the president’s lawyer. They’re going after him for two reasons: one, to try to flip him, and two, to try to find information that would show that there is an exception to the lawyer-client privilege under the crime fraud.

  You know, if you’re going to …

  ABRAMS: Who’s the “they,” by the way?

  DERSHOWITZ: The prosecutors.

  ABRAMS: Well, which prosecutor?

  DERSHOWITZ: The Southern District of New York.

  ABRAMS: OK. So, it’s not Mueller’s team now.

  DERSHOWITZ: They’re working together. If they weren’t working together, then Sessions would be back on the case because he only recused himself …

  ABRAMS: In theory.

  DERSHOWITZ: … from the Russia investigation. If these were separate investigations …

  ABRAMS: So, there’s no such thing as independent work on the part …

  DERSHOWITZ: Not in this case.

  ABRAMS: So, and in the District of Columbia, when they’re investigating McCabe, that, too, is going to be hand in hand?

  DERSHOWITZ: Absolutely. Of course, they’re all working close together to try to target the president or people close to him. That’s what’s …

  STEPHANOPOULOS: I wanted to get …

  STEPHANOPOULOS: Hold on a second. What is the significance of moving it to the Southern District? Does that somehow protect the investigation if the president chooses to move against Rosenstein or Mueller?

  ROCAH: I think it would have that effect of protecting it. But I don’t think that’s why it was done, necessarily. I mean, obviously, I’m not in Mueller’s head. I think it was done because Mueller did what any prosecutor and investigator should do, came across criminal activity about apparently Michael Cohen. And we know that from the search warrant.

  And what’s he supposed to do, sweep it under the rug? No. And it doesn’t fall within the mandate of what he’s looking at. So, he did the absolute appropriate thing, which is referred it to a US Attorney’s office.

  DERSHOWITZ: This is so naive. Mueller is looking for low-hanging fruit. He’s looking for anything …

  ROCAH: That’s what’s called investigating.

  DERSHOWITZ: … he can find against anybody who is associated with the president so he can flip them …

  STEPHANOPOULOS: But if it weren’t there it wouldn’t be a problem.

  DERSHOWITZ: Of course. But it’s there—you know, crime—broad federal criminal statutes, campaign contributions, bank records, you can find them against almost every very complex business person or political person. The question is how hard you look. And when you look hard, you have enough for a search warrant, which is fairly minimal. And then the pressure increases.

  STEPHANOPOULOS: Let me bring up the issue that Alan brought up earlier, the issue of a pardon. Again, the significance of that, one of the things that people have speculated about, it moved to the Southern District, if, indeed, Michael Cohen is pardoned either preemptively or after the fact by President Trump, this could move over into state court.

  ABRAMS: It could but, see, I think people are assuming that it would be pretty easy to prosecute in New York State court, for example, on the same set of facts. It wouldn’t. First of all, in New York State there is a specific prohibition against trying someone for the same facts as they were indicted for in a federal court.

  DERSHOWITZ: And they’re trying to get rid of that now.

  ABRAMS: They are trying to get rid of it, but it’s still the l
aw in New York State as of today. So, I think those who are counting on the state courts to kind of come in on the white horse and prosecute anyone that Trump pardons are betting on the wrong horse, so to speak.

  It is not easy. And in New York, it’s specifically prohibited.

  STEPHANOPOULOS: So, a pardon could be real protection for Michael Cohen.

  ROCAH: It could. And I think the president is trying to use that. I mean, he keeps tweeting about it. I think these tweets and these phone calls to Michael Cohen, you know, the president should not be doing that. This is a witness in a case who at least potentially has information about the president. And that is just not something you should be doing with a …

  STEPHANOPOULOS: Any danger at all, these tweets, on that point, build up a possible obstruction case?

  DERSHOWITZ: I don’t think so. I don’t think so. When you get the president of the United States, George H. W. Bush, pardoning, and the Special Prosecutor saying the following, in light of President Bush’s own misconduct, we are greatly concerned about his decision to pardon others who lied to Congress and obstructed official investigations.

  That, it seems to me, makes it clear you can’t go after a president for exercising a pardon. Look, there’s another vulnerability in a pardon. You pardon somebody, he doesn’t have a Fifth Amendment. So as soon as you pardon him, he doesn’t need immunity. You call him as a witness. And he has to testify or else he goes to jail. Then the president has to pardon him for contempt. And it becomes very, very different for a president.

  STEPHANOPOULOS: We’re just about out of time. Before we all go, let me get your best judgment right now. Do you think Michael Cohen flips?

  DERSHOWITZ: I think it’s very hard not to flip when they’re threatening you with long, long imprisonment. But I don’t think we know the answer to that question. I don’t know enough about Michael Cohen.

  ABRAMS: I don’t think he flips.

  ROCAH: I think he flips because I think he committed a lot of crimes, and he has got a lot of jail time that he’s facing for that reason.

  ABRAMS: I think he’s going to be pardoned. I think he feels confident about that.

  STEPHANOPOULOS: Pardon?

  DERSHOWITZ: I don’t think he’s going to be pardoned.

  The Epic Struggle for Michael Cohen’s Soul and Testimony27

  There is an epic battle for the soul, cooperation, and testimony of Donald Trump’s lawyer, Michael Cohen, whose office was recently searched by federal authorities. Prosecutors are almost certainly trying to flip him—that is, turn him against his client and into a cooperating government witness. The president’s lawyers certainly would prefer him to remain loyal to his client, either by testifying in his favor or invoking his Fifth Amendment privilege to remain silent.

  Each side has powerful weapons. Prosecutors can threaten him with double-digit prison sentences, while President Trump has the constitutional power to pardon him, either before or after trial. This struggle illustrates one of the most disturbing disparities in our criminal justice system. Under current law, prosecutors can threaten Cohen with life imprisonment unless he cooperates with them. Prosecutors have been known to threaten parents, siblings, spouses, and even children unless the recalcitrant witness agrees to testify for the government.

  I have seen such threats in many cases, including those of Michael Milken and Jonathan Pollard. In one case in which I was counsel, prosecutors threatened to go after my client’s twenty-four-year-old son, who was about to graduate from Columbia Law School. In the current investigation, the Special Counsel threatened to prosecute the son of former national security advisor Michael Flynn, unless he cooperated.

  Of course, prosecutors need some basis for threatening relatives, in the form of some possible wrongdoing on their part. But often it’s minimal, as evidenced by the fact that they end the threat if the cooperation is obtained. Not surprisingly, these threats often work. Not only do they get flipped witnesses to “sing,” they often get them to “compose,” that is to embellish, elaborate, or even make up incriminating stories. These threatened witnesses know that the better the story, the sweeter the deal.

  I am not suggesting that prosecutors or FBI agents deliberately suborn perjury (though some do), but rather that the Sword of Damocles hanging over the heads of flipped witnesses incentivizes them sometimes to compose. There are few limits to what a prosecutor or FBI agent can do to coerce a reluctant witness to give the government what it wants. There are cases in which government agents have threatened to send a reluctant witness to a prison where he will be raped by other inmates.

  There are other cases in which the government pays enormous sums of money to get a witness to testify. There is at least one case in which the government offered the witness a contingent-fee bonus if his testimony resulted in a conviction. None of this is regarded by current law as tampering with a witness or obstruction of justice if done by law enforcement officials. Contrast that with what a defendant and his lawyer can and cannot do to a potential witness. They can’t do anything without running afoul of the law. Unlike the president, ordinary defendants cannot pardon potential witnesses, nor can they replicate coercive tactics used by the prosecutors and FBI agents.

  If a defendant who believes that a potential witness is about to lie simply asks the witness to tell the truth, the defendant can be charged with obstruction. If he merely advises the witness that he has the Fifth Amendment right not to testify, he can also be charged with obstruction of justice. If he offers the witness a single penny to testify truthfully in his behalf, he is tampering with a witness. The law says that a witness, in theory, belongs to neither side—every witness belongs only to “the truth”—but in practice, witnesses are owned lock, stock, and barrel by the prosecution. They can be bought, rented, coerced, threatened, and then thrown away like a rotten piece of fish.

  Why does this disparity exist in the law today? For several reasons. First, prosecutors and former prosecutors who serve in legislatures get to write the laws, and former prosecutors who serve as judges get to interpret them, so the criminal justice system ends up heavily skewed in favor of prosecutors. Second, the system trusts prosecutors more than defense attorneys to serve the interest of truth. Third, many of these flipped witnesses are former associates of the target or subject, and they won’t testify against their friends unless pressured or coerced to do so.

  These may be understandable reasons, but the effect of the disparate rules is to give prosecutors enormous leverage over potential witnesses. The ordinary citizen has no comparable leverage. Even the president’s leverage—the power to pardon—is limited. If President Trump were to pardon Cohen, the latter could be called as a witness, and Cohen would probably not be able to invoke his privilege against self-incrimination. Moreover, there are those who argue that a president could be charged with obstruction of justice if he pardoned a potential witness in order to get him to not testify against him.

  I disagree. Again I will refer to President George H. W. Bush, who did precisely that: he pardoned Caspar Weinberger and five other defendants on the eve of their trials. Yet no one suggested charging President Bush with obstruction of justice. It is impossible to predict at this time whether Cohen will flip with so many variables. What, if anything, do they have on Cohen? What, if anything, does Cohen have on President Trump? How loyal is Cohen? Does he believe he will be pardoned if he refuses to cooperate? One conclusion is clear: prosecutors have the upper hand in this epic battle.

  Federal Judge Rightly Rebukes Mueller for Questionable Tactics28

  An experienced federal judge has confirmed what I have been arguing for months: namely, that the modus operandi of the Special Counsel is to charge associates of President Trump with any crime he can find in order to squeeze them into turning against Trump. This is what Judge T. S. Ellis, III said at a hearing on Friday, May 4, 2018:

  “You don’t really care about Mr. Manafort’s bank fraud…. What you really care about is what information Mr. M
anafort could give you that would reflect on Mr. Trump or lead to his prosecution or impeachment.”

  This tactic is as old as Adam turning against Eve. But as the judge correctly pointed out, it risks the possibility that the squeezed witness will not only sing, he will compose! Here is what Ellis said about that:

  “This vernacular to ‘sing’ is what prosecutors use. What you got to be careful of is that they may not only sing, they may compose.”

  I have been using this “compose” metaphor for decades and I am gratified that a judge borrowed it to express an important civil liberties concern.

  Every experienced criminal lawyer has seen this phenomenon at work. I have seen it used by prosecutors who threaten wives, parents, siblings, and in one case the innocent son of a potential witness who was about to graduate from law school. Most judges, many of whom were former prosecutors, have also seen it. But few have the courage to expose it publicly, as Judge Ellis has done.

  Defenders of Mueller’s tactic argue that the threatened witnesses and their relatives are generally guilty of some crime, or else they wouldn’t be vulnerable to the prosecutor’s threats. This may be true, but the crimes they are threatened to be charged with are often highly technical, elastic charges that are brought only as leverage. They are dropped as soon as the witness cooperates. This was precisely the point Judge Ellis was making with regard to Manafort. A similar point could be made with regard to Michael Flynn and perhaps to Michael Cohen. Indeed, Flynn pleaded guilty to a highly questionable charge precisely because his son was threatened with prosecution.

  Civil libertarians have long criticized this tactic since the time it was used by Joseph McCarthy and his minions to pressure witnesses to testify against suspected communists. In recent decades it has been deployed against mobsters, terrorists, and corporate predators. But Judge Ellis has accused Mueller of using this questionable approach to develop a political case against the duly elected president of the United States.