April 2, 2018

The same week Attorney General Jeff Sessions announced his decision not to appoint a special counsel to investigate misconduct at the FBI and DOJ, choosing instead to appoint a U.S. attorney to look into it, famed civil liberties attorney Alan Dershowitz was making it clear in interviews that the “criminalization of political differences” is wrong for democracy, no matter which side of the aisle is doing it. As for special counsels, he sees too many problems with them.

Special counsels are supposed to be the means by which we avoid partisanship in criminal investigations, but it hasn’t worked that way in practice. “Special counsel always has the goal of ‘getting the people,’” Dershowitz said to Jack Fink of the CBS affiliate in Dallas. “They’re going to find crimes, or they’re going to manufacture crimes or they’re going to stretch the criminal law to fit the ‘crimes’ because they’re not going to come away empty handed.”

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That is clearly going on with the metastasizing Mueller investigation into “Russia/Trump,” which Dershowitz believes should never have been undertaken and needs to be brought to a close. But he thinks Congressional committees are too partisan and recommends a special non-partisan commission. That’s what other democracies do, he says. “They don’t appoint a special counsel and tell them to ‘Get that guy...’ That’s what they did in the Soviet Union. Lavreniy Beria, the head of the KGB, said to Stalin, ‘Show me the man and I’ll find you the crime!’ That’s what special counsel does.”

He’s not saying we’re just like Russia –- we do have the Bill Of Rights –- but we’re “going down the wrong direction.” He warns that tomorrow it could affect you and me. “If you give the prosecutor the ability to stretch the criminal law to fit a target, it’s very dangerous.”

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He says he can’t understand why Rod Rosenstein isn’t recused (join the club) because he’s a key witness in Comey’s firing since he wrote that memo justifying it. I’d add that he appears to have other conflicts as well, such as signing off on one of the FISA applications for spying on Carter Page. Dershowitz also says it’s tragic that the FBI can’t be neutral and objective in administering justice because we have to have faith in our institutions. “You can’t have an FBI agent like Strzok who is writing messages saying, ‘Oh, we have to stop Trump from becoming President.’”

Keep in mind, this is coming from a liberal Democrat and self-professed Hillary voter. (Of course, I do have to wonder if, knowing what he must know now about her serial lying and other criminality, he would still show up to vote for her if the election were held today. Would he give her a pass on what he might choose to label mere “political sins”?) He admits he’s been given a lot of grief by friends and colleagues on the left; they just want to get Trump and don’t seem to understand or care what it might do to the law.

“Collusion” isn’t even a crime, Dershowitz reminds us. Well, what about obstruction of justice? “I think the President cannot be charged with obstruction of justice for exercising his constitutional authority,” he says. “He has the authority to fire anybody in the Executive Branch –- the Supreme Court has said that.” But, as I’ve mentioned before, the goal of the Democrats has obviously been to box Trump in legally so he can’t use his authority as President without being charged with obstruction. Dershowitz sees this as potentially setting up a huge constitutional conflict.

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Dershowitz was also on FOX News with Maria Bartiromo on Easter Sunday, congratulating Sessions for a good call on appointing a U.S. Attorney, John Huber, to investigate instead of a second special counsel and saying that “should have been the call when Mueller was appointed,” at least as a first step. He went on: “We have to make sure we never confuse political sins with federal crimes.” What we need to do, he told her, is to really focus –- in a totally nonpartisan way –- on finding out what the Russians were trying to do and make sure it doesn’t happen again.

I’ve been calling for a second special counsel as a last resort, since the Justice Department can’t be trusted to investigate itself, and also, ironically, as a reflection of the same spirit Dershowitz shows when he calls for the same standard of justice for both sides. (After all, we already HAVE a special counsel investigating one side, with no end in sight.) U.S. Attorney Huber has been investigating since November, and the Inspector General should have his report ready shortly, so we should know soon if these steps are adequate or if that last resort will be needed after all.



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  • Bruce Probert

    04/05/2018 05:57 PM

    Mike it isn't justice if some get a pass. Politics doesn't make treason okay. Back in the day Jane Fonda was given a pass for her treason because we weren't in a declared war. In title 18 chapter 2381 it doesn't say declared war, it says giving aid and comfort to the enemy. Jane Fonda gave aid and comfort to an enemy of the United States of America, We have picture proof. Barack Obama gave aid and comfort to Iran while they were and are still actively killing Americans. He concluded what is effectively a treaty with Iran without the approval of the Senate in fact clearly in opposition to the Senate. Nothing in the accord called for a cessation of hostile acts they still call for death to America, death to Israel our ally. Barack Obama gave Iran 150 billion dollars to the Iranians if that doesn't constitute aid and comfort to an enemy I don't know what would. I would invite some one to argue that Iran isn't an enemy of the United States. The Mueller investigation is treatise on ethical misconduct. From firing Peter Strzok and Lisa Page and not telling anyone why to Andrew Weissmann who had tickets to Hillary's victory celebration. There isn't a single one that you would want on a jury if you were Trump. Robert Mueller may have been a Marine back in the day but so were Lee Harvey Oswald and Charles Whitman and so was I. Honor is a daily commitment you need to rededicate daily and it doesn't take much to violate that trust. The Donald isn't everyone's idea of a president, but it's real hard to argue that he isn't his own man. If people like Hillary and Barack can engage in sedition without consequence deliberately undermining the freely elected government that we have already lost our country.