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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