For those who argue that everything is fair if the goal is to prevent a president from being above the law, Judge Ellis provided a compelling response:
“What we don’t want in this country is that we don’t want anyone with unfettered power … It’s unlikely you’re going to persuade me that the special counsel has unlimited powers to do anything he or she wants.”
He was referring to the manner by which the Special Counsel was using his power to “tighten the screws” on Manafort by indicting him for an alleged crime that the judge believes has nothing to do “with what the Special Counsel is authorized to investigate.”
Civil libertarians should be applauding Judge Ellis for seeking to cabin the “unfettered power” of the Special Counsel to do “anything he wants.” But no. Because his ruling may help Trump, and because Trump has applauded it, the civil liberties and criminal defense communities have not been heard from.
Judge Ellis has not yet ruled on the propriety of the Special Counsel’s actions, and it is unlikely he will dismiss the charges against Manafort. But Mueller is on notice that he may not have unfettered power to indict President Trump’s associates for old crimes that are unrelated to the Russia investigation for the purpose of making them sing or compose against Trump. Equally important, the civil liberties community no longer has an excuse to ignore—or defend, as some have done—tactics that pose considerable dangers to civil liberties just because they are being used against President Trump.
The week of Ellis’s rebuke was not a good one for Special Counsel Mueller. Nor was it particularly good for President Trump, as his new lawyer Rudy Giuliani presented a somewhat garbled narrative with regard to the payment made to Stormy Daniels. But it was an excellent week for the Constitution and for all Americans, because a federal judge made it clear that no one—not even the Special Counsel—is above the law and beyond scrutiny by our system of checks and balances.
Trump’s Legal Defense and Moving Forward
In fifty years of practicing criminal law, I have never advised a client to speak to prosecutors unless the alternative is worse; doing so is fraught with inherent risks. Rather than accepting a negotiated appearance, I suggest that there could be grounds for a subpoena to be challenged by President Trump’s lawyers if issued by Special Counsel Robert Mueller. In the essays and transcripts that follow, I discuss why a subpoena directed at questions about Trump’s actions before he was in office might be more difficult to fight.
I suggest again that it was a mistake to appoint a special counsel, and instead, a nonpartisan, independent commission like for 9/11 should have been appointed to find out how the 2016 election went wrong. I question the investigation’s objectivity since Mueller and former FBI director James Comey were so close. I raise again the point that Deputy Attorney General Rod Rosenstein should be recused because he is a witness in the Comey firing. I draw attention to cases that say it may be perfectly legal to have a foreign person involved in US elections as long as they don’t make substantial campaign contributions.
Finally, I explore the question of whether Trump can pardon himself and refer to points from an article I had originally written in The Hill in July 2017, but reissued recently after President Trump tweeted that he has the authority to do so. My conclusion now, as almost a year ago, is the same: No one knows because no president has ever tried it, and I believe it is unlikely that we will ever know for sure whether a self-pardon is constitutionally permissible.
Trump’s Better off Litigating Than Testifying29
In my experience, subjects of criminal investigations rarely help themselves by speaking to prosecutors or testifying before a grand jury. Far more often, they hurt themselves by falling into a perjury trap carefully set by prosecutors.
When prosecutors invite a subject to talk to them, they are not trying to help the subject. They are trying to bolster their case against him. Subjects can become targets and then defendants even if they tell the truth.
They can fill gaps or make statements that are contradicted by other witnesses who the prosecutors chose to believe. That is why, in my half-century of practicing criminal law, I have never advised a client to speak to prosecutors unless the alternative is worse.
In this case, the alternative may well be a grand jury subpoena, which is worse in that the subject must appear without his lawyer and without limitations of time and subject matter. But it is better in that it can be challenged legally. A negotiated appearance cannot.
There are several grounds on which President Trump’s lawyers could challenge a subpoena. The broadest ground would be that a sitting president cannot be compelled to appear before a grand jury and answer questions. The courts are likely to reject so broad an argument, as they rejected President Clinton’s claim that he could not be required to sit for a deposition.
A somewhat narrower objection would be to answering any questions that relate to the exercise of his presidential authority under Article II of the Constitution. Just as members of Congress and the judiciary cannot be questioned about the exercise of their constitutional powers, so, too, a president cannot be required to explain why he fired FBI director James Comey or national security advisor Michael Flynn.
I think that President Trump would have a good chance of prevailing on this issue.
Finally, he could challenge questions that go beyond the scope of the Special Counsel’s mandate. Even if he prevailed on that challenge, it would only be a Pyrrhic victory, since the same questions could be put to him by a grand jury in the Southern District of New York.
All in all, I think the president is probably better off litigating than testifying, though he might end up doing both.
The Trump Defense30
From an interview on Meet the Press with Chuck Todd, May 2018.
CHUCK TODD: Look. I think I believe, and I think you’ve said this before on the obstruction part of this, the obstruction case is only as strong as probably the actual conspiracy case itself. And I understand that. But did Mr. Giuliani actually strengthen, potentially, an obstruction case against the president by declaring that rationale as representing the president on television?
DERSHOWITZ: Well, we now have, obviously, two narratives. The president himself said, both on television and in a meeting with the Russians, that he was motivated at least in part to end the Russian probe. I’m sure he was also motivated in part by what Comey refused to tell him.
Motives are complex. Motives are multifaceted. That’s why motives should never form the basis of a crime. That’s why it’s wrong to question what a president’s motives are when the president acted within his constitutional authority. We don’t want to turn motives—
TODD: Right.
DERSHOWITZ: —and analysis of the president’s mind into criminal statutes. We have to look at what the president did, not what his motives are because motives are always complex, in both situations. The payment to Stormy Daniels—
TODD: Right.
DERSHOWITZ: —and the firing of Comey, we see complex motives at work. But this can be presented much more effectively as a defense than it’s been presented thus far by the Trump team.
TODD: I want to ask you actually about that in particular. When it comes to the questions that Mueller wants to ask the president, you have, I think, believed that a sitting president couldn’t be compelled to answer questions via subpoena about his actions while in office. But what if—
DERSHOWITZ: No, no, about the motives behind his actions.
TODD: Motives behind, right. I understand that.
DERSHOWITZ: Right, yes.
TODD: But if Mueller wants to question the president about his actions and about his motives before he’s in office, for everything that took place in the campaign, isn’t that a much tougher subpoena for Mr. Trump’s attorneys to fight?
DERSHOWITZ: Yes. There are three categories. There’s what happened before he was president. That, he can fight on Judge Ellis’s grounds, that it has nothing to do with the mandate
that was given to—
TODD: But that’s a hard—
DERSHOWITZ: —the Special Counsel.
TODD: It’s probably a high bar.
DERSHOWITZ: That’s a hard—that’s a high bar.
TODD: OK.
DERSHOWITZ: The second is actions he took while president that are authorized by the Constitution. I think he prevails on that. And then there are actions during the campaign and the transition period, which have kind of quasi-legal protection. So, there are three categories.
And if they were to fight the subpoena, I think they would have a partial victory. But in the end, they would probably have to answer some questions. And I’m sure that’s what they’re thinking about now. Because when you volunteer—
TODD: Right.
DERSHOWITZ: —at least maybe you can constrain the questions. When you’re subpoenaed, a subpoena is broad. Your lawyer isn’t present. This is a tough decision for the president’s team to make.
You Won’t Have Any Doubt at the End of This31
From a May 2018 appearance on This Week with George Stephanopoulos, again with Dan Abrams.
DAN ABRAMS: Yes, I mean look, what we know for certain as a result of this investigation is that the Russians did meddle in the election, thirteen Russians have been indicted by the Special Counsel.
At least six others have been indicted in the last year in connection with this investigation. So, this notion that sort of nothing is (inaudible), here we are a year later and we’re still waiting, a lot has happened in the first year.
The question still remains as to what’s next, meaning will they be able to indict and will they indict any senior members of the Trump campaign in connection with that? We don’t know the answer to that.
But the notion that up to this point, it’s been a witch hunt or a hoax just makes no sense.
STEPHANOPOULOS: One thing we also know, Professor Dershowitz, is another Special Counsel investigation, and you’ve criticized this having gone on for far longer than a year.
DERSHOWITZ: Well I think it was a mistake to appoint a Special Counsel. They should have appointed a nonpartisan, independent commission like 9/11 to find out how this election went wrong.
And it went wrong in so many different ways. This is one of the worst elections in modern history with Russian attempts to influence, other attempts by Gulf countries to influence the existence of FBI agents who were trying desperately to turn the election away from Trump.
We should have had a massive investigation and then we should change the laws to make it clear what you can do and what you can’t do. I don’t think this investigation has gotten us what we need to know, knowledge and information about how to prevent this in the future.
ABRAMS: (Inaudible) isn’t passing that—oh, when—you know, we’ve got evidence that the FBI agents were trying to turn this against Trump, we don’t have any evidence that FBI agents were trying to turn the election.
DERSHOWITZ: How about Strzok’s tweets when he said we need a guarantee, we need an insurance policy, we have to investigate that.
STEPHANOPOULOS: (Inaudible) hold on, those were not tweets, those were private texts.
DERSHOWITZ: What’s the difference? We’ve got them. They show a state of mind, and now we have—
ABRAMS: Did you read all of his texts? Did you read all of his texts? Actually, the total context is not saying oh my goodness, Donald Trump is the problem. Also, he talked about Hillary Clinton and problems with Hillary Clinton, et cetera.
The bottom line is, to sort of throw that in there with all the rest of what the—what the Special Counsel has found, to me, it just minimizes what we’ve really found with regard to Russian meddling.
DERSHOWITZ: And I think it should minimize it because what we found is not particularly significant. What we—
ABRAMS: You don’t think it’s significant?
DERSHOWITZ: No.
ABRAMS: Russian meddling is not significant?
DERSHOWITZ: No, I think it’s very significant.
ABRAMS: Oh.
DERSHOWITZ: The meddling. I don’t think the criminal charges are very significant because we, to this day, don’t even know what the law still is. You know, the Supreme Court has said that foreign governments can intrude themselves into elections if they have an interest in the outcome of the election. What they can’t do is contribute money. The law is very unclear. Now we have information of an FBI informant in the campaign.
That’s wanting an investigation.
ABRAMS: Again, FBI informant in the campaign. Again, no evidence an FBI informant was—
DERSHOWITZ: No evidence?
ABRAMS: None. The—here’s the evidence we have. The evidence we have is that an FBI informant spoke to members of the Trump campaign.
DERSHOWITZ: That’s—
ABRAMS: That’s not in the campaign.
DERSHOWITZ: That’s good enough to get an investigation going. This was a—Dan, let me ask you a question. Was this a good election? Was this something we should be proud of? Or is this an election that warrants an investigation, a nonpartisan investigation on both sides to make sure that in the future, (A) we know what the rules are, and (B) we know how to stop countries from improperly intruding on elections.
That’s what we need to know. We need to look forward, we need to stop this in the future and stop making up crimes and expanding the criminal law to fit people that we’ve targeted. That’s dangerous to democracy.
ABRAMS: But look, Alan’s been very consistent on this issue about the law over the years. And—and I—and I respect that. But the notion that the Special Counsel can’t view this objectively, that Robert Mueller is somehow—what? Robert Mueller is so compromised? Which way?
DERSHOWITZ: I’m not suggesting—
ABRAMS: —long-term Republican, so why can’t Robert Mueller be the one to assess whether there are any crimes here?
DERSHOWITZ: First of all, this long-term Republican—Comey was a long-term Republican, they’re all long-term Republicans who hated Trump. So that doesn’t help at all—
ABRAMS: —you know that Mueller hated Trump?
DERSHOWITZ: Well—you won’t have any doubt about that at the end of this—
DERSHOWITZ: No, but maybe he and Comey are so close—their history is so close together that when you read Comey’s book and you see what he has said, you really wonder about the objectivity of the investigation. Look, if there was evidence of crime, the US attorneys can investigate it, as the Southern District is doing. The main justice could investigate it.
There’s one person that should be recused from this case and that’s Rod Rosenstein, because he’s a witness. He’s the main witness. There was never a need for a Special Counsel—special counsels have targets, they’re looking to try to find crimes against people. That doesn’t serve the interest of America. America’s interest is served by finding out the truth, the facts, changing the law, and making sure it never happens again.
STEPHANOPOULOS: It sounds like you’re in league with President Trump on impeaching the credibility at this point of the Special Counsel. But in the meantime, the investigation is continuing, and one of the things we learned this weekend is that New York Times report on the cover of the New York Times this morning that now Robert Mueller is investigating this meeting that Donald Trump Jr. and other aides had with emissaries of Gulf nations, wealthy Arab Gulf nations offering help to win the election.
The president’s tweeted on that this morning. And so, all he says is that things are getting really ridiculous. Failing crooked New York Times has done a long and boring story indicating the world’s most expensive witch hunt has found nothing on Russia and me so now they are looking at the rest of the world. Now, this story, Dan, is—is a bit complicated. I’ll grant that. But what it does say is that Donald Jr. had a meeting with an emissary of the UAE and Saudi Arabia who was offering some help, perhaps working with an Israeli firm on social media.
ABRAMS: I read the article twic
e. And then again. And still am not certain after reading it three times whether there is any potential criminal activity.
DERSHOWITZ: Isn’t that a problem? Isn’t that a problem that we don’t even know what the law is today? As to whether—
ABRAMS: Well, look. Here’s—no, it’s actually—
ABRAMS: —it’s actually not that we don’t know what the law is, it’s that we don’t know what the facts are.
DERSHOWITZ: No, it’s that we don’t know what the law is.
ABRAMS: Well, at least for me. As far as I know—
STEPHANOPOULOS: Let Dan finish—
ABRAMS: The basic law as I understand is that a foreign national can’t provide anything of value, which has been interpreted to mean typically substantial assistance in connection with an election.
DERSHOWITZ: OK.
ABRAMS: Period.
DERSHOWITZ: Let’s take the following scenario. You have countries in the world who hate the Democrats because of the fact that they made a deal with Iranians that they think endangers their security. Therefore, they want to see a Republican elected. Is that a crime? You don’t know the answer to that, I don’t know the answer to that because the Supreme Court and the legislature—
ABRAMS: —wait, I do know the answer to that.
DERSHOWITZ: What is it?
ABRAMS: If they gave money, that would be a crime.
DERSHOWITZ: That would be one.
ABRAMS: If they gave—if they gave any campaign assistance that has a value, that would be a crime.
DERSHOWITZ: No, that’s not true. The United States Supreme Court has said case after case where you can give things a value if they are protected by the First Amendment, if they are informational, if they are a concert, for example. There are cases all over the place and they go both ways—
ABRAMS: But Alan—
DERSHOWITZ: The law is not clear.
ABRAMS: But Alan, the law in every area has gray areas, right? That’s why cases make it to the Supreme Court, because appellate courts end up interpreting things in different ways and then it makes its way up to the Supreme Court where the Supreme Court has to resolve exactly what it means.
The Case Against the Democratic House Impeaching Trump Page 15
