The Case Against the Democratic House Impeaching Trump Page 9

  One possible reason for why Rosenstein should not recuse himself would be if Mueller were not investigating alleged obstruction of justice by the president based on his firing of Comey. Perhaps Mueller realizes that charging a president with obstruction of justice for performing a constitutionally authorized act such as firing the director of the FBI would raise grave constitutional issues. Perhaps, therefore, that is not part of his current investigation. If it is not, then Rosenstein has no clear conflict of interest. But the available evidence suggests that Mueller is looking into the Comey firing.

  Although Rosenstein’s remaining on the case does not violate the so-called “advocate-witness” rule that prohibits a lawyer being both an advocate and a witness at the same trial, it raises concerns about potential conflicts of interest. The advocate-witness prohibition is designed to prevent confusion over roles by the jury at trial. It does not deal with the broader issues of conflict of interest and the appearance of conflict.

  In the Rosenstein matter, the supervising prosecutor has a potential stake in whether the line prosecutor will call him as a witness or will cross-examine him if he were to be called as a defense witness. Even more worrisome is the possibility—unlikely as it seems—that the supervising attorney may become a subject or target of the investigation. He could be named as a co-conspirator if Mueller believed that he knowingly provided a cover to hide the president’s real intentions in firing Comey.

  The more likely problem grows out of the possibility that President Trump’s lawyer would try to shift the responsibility for the firing of Comey from the president to the author of the memo justifying the firing, namely, Rosenstein. “Advice of counsel” is a recognized defense, especially where state of mind—alleged corrupt intent—is at issue.

  If President Trump’s lawyer were to make this argument to the Special Counsel and his supervisor, could Rosenstein fairly consider and assess it? Would he have a conflict if he had to evaluate his own role in the firing? In an ordinary criminal case, recusal is not required based on speculation possibilities. But this is no ordinary case. When it is the president, or those around him, who are being investigated, everyone involved in the investigation and charging decisions must be “Caesar’s wife,” beyond any suspicion or even appearance of conflicting interests.

  Does Rosenstein’s continuing involvement in the Russia probe and possible obstruction of justice pass that daunting test? That is the relevant question, and more attention should be paid to that ethical issue than to the political question of whether or not he should be fired.

  On Criminality and Presidential Advice12

  From an April 2018 appearance on Meet the Press with Chuck Todd and Bob Bauer, former White House counsel for Barack Obama.

  DERSHOWITZ: There are three categories of cases that are being investigated.

  The first and most important are constitutionally authorized acts by the president, which include pardoning, firing, directing the prosecution. If he were ever to be charged or impeached for any of those acts, that would be a real constitutional conflict. And we’d have arguments on both sides constitutionally.

  The second category is purely private acts that preceded his presidency, the allegations by women that may require him to testify under oath.

  CHUCK TODD, MODERATOR: Right.

  DERSHOWITZ: His business relations. He’d have no defense for that except factual, or he could argue that it was beyond the scope of the investigation. And then there’s the third category, a hybrid category, including emoluments, whether there was collusion. Those are the three categories.

  I do think that anything relating to pardon, he would have a strong constitutional defense. I think he’s most vulnerable when it comes to women, if he testifies under oath, and gets into a she said/he said, which puts him in Clinton-land, and the basis on which Clinton was impeached.

  TODD: Mr. Bauer, what do you say on the pardon issue?

  BOB BAUER: I don’t think there’s any question, and I have to respectfully disagree with Professor Dershowitz. If the president uses the pardon power for corrupt purpose, then he is exposed to criminal liability for that. If his lawyer, with his authority, on his behalf, offered a pardon as a means of tainting or corrupting testimony in a criminal proceeding, then I don’t see any basis for saying the president does not have to answer for that in the criminal justice system.

  TODD: But if the president believes that this investigation is trumped up, that Mr. Mueller’s investigation’s out of control, then why wouldn’t he offer pardons?

  BAUER: Well, he may believe that, but he may also believe it’s out of control because he fears for himself, because he’s concerned about his own exposure. And it’s precisely that element of self-protectiveness that I think threatens the legality of that offer of the pardons. It brings that into question.

  TODD: Professor—go ahead.

  DERSHOWITZ: There’s a problem with that. And that is President Bush, the first, did exactly that. He pardoned Caspar Weinberger and five people on the eve of the trial, in order to end the investigation. His Special Counsel, at that time, Lawrence Walsh, accused him of doing that and said he had succeeded in ending the investigation. And yet, nobody, nobody, suggested obstruction of justice at that point.

  Thomas Jefferson gave pardons to people in order to help the prosecution of his political enemy, Aaron Burr.

  All throughout history, we see presidents offering and granting pardons. Once you start getting into the area of inquiring as to what the motive of a pardon was, you’re really getting into constitutionally difficult areas. Of course, if the president were to take a bribe and give a pardon—

  TODD: Right.

  DERSHOWITZ: —the taking of the bribe itself would be the crime.

  The granting of the pardon would not be a crime. I do not believe that engaging in a constitutionally authorized act can ever be the basis of a criminal charge.

  TODD: All right. Let me, I want to move the conversation here a little bit. And Bob, let me start with you. The fact that Flynn decided to cooperate and plead guilty and not accept the dangling of a pardon, did it—or does that—tell you something? And does Paul Manafort’s decision not to cooperate tell you something with this pardon? Is there—what do you read into it?

  BAUER: I don’t know that I read a whole lot into it. I mean, it may be that Mr. Flynn just wasn’t confident that the offer of the pardon was something he could count on. Who knows—who’s to say why he would have done that?

  But if I could, again, disagree with Professor Dershowitz. The Iran-Contra matter did involve, potentially, questions of high policy. But I don’t see that here at all.

  What’s at issue here is whether or not a presidential campaign coordinated with a foreign power to affect the outcome of an election. And that is a core criminal concern. It’s been part of our statutory framework since 1966, repeatedly strengthened by the Congress. And I don’t see that that bears any analogy at all to Iran-Contra.

  DERSHOWITZ: Well, except that the pardon was offered to stop a criminal investigation by a special prosecutor. Under your theory, that would be obstruction of justice. And yet it never occurred to anybody.

  It doesn’t matter what the subject matter was. If you obstruct justice for any subject matter, you’re guilty.

  The issue is whether granting a pardon in order to stop an investigation can be the basis for a criminal or—prosecution. And I think the answer to that, presidentially, is no. And it’s no justification to say that matter—

  TODD: Right. But—

  DERSHOWITZ: —that involved matters of high policy.

  TODD: But by the way—

  DERSHOWITZ: And this involved matters of the Soviet Union, relationship with the Soviet Union. That’s not a good argument.

  TODD: You guys are two very bright legal minds. But there is no legal standard for impeachment.

  DERSHOWITZ: Well, there is.

  TODD: And so—I mean—

  DERSHOWITZ: There is—there
is a legal standard.

  TODD: Per se, is there?

  DERSHOWITZ: Yes.

  TODD: So, it doesn’t matter what you interpret as obstruction of justice, what Bob interprets as obstruction of justice. The end of the day, it’s about what the members—what, what one hundred members of the United States Senate think.

  DERSHOWITZ: I don’t agree with that. The Constitution provides specifically you can only be impeached for bribery, treason, or other high crimes and misdemeanors.

  They also put the chief justice in charge of the trial. And if I were ever, or any of the lawyers for Trump, if he got impeached for something that was not specified in the Constitution, the first motion that should be made is to the chief justice to dismiss it on legal grounds.

  This is not purely a political decision. Otherwise, the chief justice, who’s not political, would not be put in charge of the trial of a person who’s been impeached.

  So, I think it overstates it to say it’s completely political, unbound by the words of the Constitution itself.

  TODD: Mr. Bauer?

  BAUER: Can I just bring this back to the criminal justice system? But you’re absolutely correct. I mean, Congress certainly could act on an obstruction that didn’t quite fit the criminal elements in the law.

  TODD: Right.

  BAUER: But still was enough for impeachment.

  But let’s be clear again what we’re talking about. We’re talking about the potential that a presidential campaign in the United States aided a foreign government in influencing the outcome of the federal election. That is a crime. It is a crime.

  It is not correct, as Professor Dershowitz has said from time to time, that collaboration with a foreign government to help in an American presidential candidate’s election is not criminal. It is.

  TODD: Professor?

  DERSHOWITZ: What’s the statute? What’s the statute—

  BAUER: The federal election camp—

  DERSHOWITZ: I searched the statute books over and over again. The word “collusion” appears once in the federal criminal code. It only applies—

  BAUER: If—

  DERSHOWITZ: —to when businesses collude with each other in violation of the antitrust laws.

  Collusion between a candidate and a foreign government is a political sin. It would be a terrible thing to do. But in and of itself, it wouldn’t be a crime.

  Of course, it could involve criminal activities, if you accepted campaign contributions and did things of that kind.

  TODD: Let—I want—

  DERSHOWITZ: But the collusion itself would not be a crime. If it occurred, and I’ve seen no evidence that it has occurred in this case.

  TODD: Very quickly, Professor Dershowitz, the president wants to talk to Mueller, at least he said so. What parameters would you advise him to accept?

  DERSHOWITZ: Any he can get. I mean—

  TODD: You—would you advise him to do it?

  DERSHOWITZ: First of all, Mueller has the ultimate authority to call him in front of a grand jury without his lawyer, and no limitations on time. So, he has to come to a compromise.

  I would surely suggest that he never testify in any of the cases involving women, that he not make the mistake that Bill Clinton made, advised by Bob Bennett, that he testify about his sex life.

  But as far as the Special Counsel is concerned, he doesn’t control that. The Special Counsel controls that. So any compromise that could be made, sitting with his lawyer, it doesn’t matter whether it’s under oath or not, because either is a crime.

  TODD: Right.

  DERSHOWITZ: But constraints on time, constraints on subject matter, anything he can get would be a plus because the Special Prosecutor has the power to call him in front of the grand jury.

  TODD: Very quickly? I mean—

  BAUER: Very quickly, I would simply say—since Donald Trump may have known that the Kremlin sent emissaries to his campaign in June of 2016 to talk about support for his campaign, he might take the advice that he gave Bill Clinton in 1999—take the Fifth.

  TODD: Very interesting.

  DERSHOWITZ: Bad advice. Bad advice.

  TODD: Professor Dershowitz, very quickly, any chance you’ll lead the president’s legal team or join it in any capacity whatsoever if he asks?

  DERSHOWITZ: No. I want to remain independent. I want to say what I say. I want to say what I said about Hillary Clinton.

  TODD: Has he asked you? Has he asked you to join the team?

  DERSHOWITZ: I—you know that no lawyer could ever comment about whether—

  TODD: Ah.

  DERSHOWITZ: —he’s ever been asked.

  TODD: Fair enough.

  DERSHOWITZ: But let me say, I would have said the same thing if Hillary Clinton had been elected president and they were saying, “lock her up.”

  TODD: Gotcha.

  DERSHOWITZ: I’m taking exactly the same position now—

  TODD: I know.

  DERSHOWITZ: —that I’ve made for fifty years as a civil libertarian.

  TODD: Professor Dershowitz—Professor Dershowitz, I appreciate your coming on during this holiday week.

  DERSHOWITZ: Thank you.

  Mueller and the Need for a Nonpartisan Commission

  The drafters of our Fifth Amendment intended grand juries to serve as protection against overaggressive prosecutors. Instead, grand juries today empower prosecutors against criminal defendants. I explore why Special Counsel Robert Mueller impaneled a second grand jury in the District of Columbia when one already exists in Virginia. What advantage would a prosecutor have? I then turn attention to retired Lieutenant General Michael Flynn, and ask why he would have lied to the FBI, and why Mueller only charged him with lying, when in fact there was nothing criminal about Flynn’s request to Russian ambassador Sergey Kislyak to delay or oppose a UN Security Council vote on an anti-Israel resolution that the outgoing Obama administration refused to veto.

  Concern whether the Trump team was seeking to fire Mueller was widespread. And at the time, I wrote that the action taken by the team to challenge Mueller and his investigation on the legal grounds was a more viable and practical tactic. On the other hand, I ask civil libertarians who are unwilling to give President Trump the benefit of law and civil liberties to consider the issue of legitimately criticizing Mueller rather than seeing any skepticism regarding his history as a desire to help Trump.

  President Trump is criticized for demanding loyalty from Attorney General Jeff Sessions, yet I point out that every previous president has expected the same. The blame should not solely go to the president, but should be shared by our system that merges the role of attorney general as both political advisor to the president and head law enforcement officer and chief prosecutor of the United States. I indicate that these conflicting loyalties and obligations are the very reason our country appoints special counsel and independent prosecutors. I have long proposed that the Justice Department be broken up into two separate agencies, with separate heads: one a loyal political advisor to the president and a member of the cabinet, the other completely independent and not a member of the cabinet.

  In the same vein, I argue that the appointment of a special counsel to investigate Russian meddling in the 2016 presidential election was misguided and, instead, Congress should have created a nonpartisan commission of objective experts to conduct the investigation. I point out that the public has lost faith in the leadership of the Justice Department and the FBI and does not trust congressional investigative committees. A remedy to regain public trust is to let Congress appoint a nonpartisan commission to conduct a transparent investigation, and let the Special Counsel suspend his investigation until the nonpartisan commission issues its report.

  Why Did Mueller Impanel a Second Grand Jury in DC?13

  The decision by Robert Mueller to impanel a grand jury in the District of Columbia raises some intriguing questions, which are unlikely to be answered by the secretive Special Counsel.

  The first and most
obvious is why a second grand jury was needed at all. There is already a grand jury in Virginia, which is investigating aspects of the so-called Russian connection. That grand jury is fully capable of doing anything the new grand jury can do. It can issue subpoenas for additional documents, summon additional witnesses, and consider additional aspects of the case or cases being investigated by Mueller.

  So, if grand juries really were independent decision-makers of the kind contemplated by the Bill of Rights—if they truly served as a protection for defendants against overaggressive prosecutors—then it would make no sense for a special counsel to bifurcate its work into two separate grand juries. A prosecutor would want one grand jury to hear all the evidence before deciding to indict. But all experienced lawyers know that today’s grand juries are merely twenty-three chairs, with twenty-three puppets, who do whatever their puppet master, the prosecutor, wants them to do. As the former chief judge of New York famously put it, a prosecutor can get a grand jury to indict a ham sandwich.

  The drafters of our Fifth Amendment, which guarantees a defendant the right to grand jury consideration of his or her case before he or she can be brought to trial in a federal court, would be turning over in their graves if they knew how this shield against overzealous prosecutors has been turned into a sword for the use of prosecutors against criminal defendants. I don’t know a single criminal defense lawyer who wouldn’t vote to abolish grand juries if they had that option.

  The decision to impanel a second grand jury may have little to do, therefore, with the work of the grand jury, which could have just as easily been conducted a few miles away in a northern Virginia courtroom. It may, however, have everything to do with the petit jury—the twelve citizens who will try any defendant—that may eventually be selected if any defendant is ultimately indicted.