For anyone who actually cares about what the Mueller report means, I highly recommend the Alan Dershowitz “Introduction” to the report, which can be purchased for Kindle for about 7 dollars. I purchased it this morning, and just completed reading it. (The report without the intro is on-line, free, all over the place.) Dershowitz voted for Hillary, is a registered Democrat, was marinated in the Leftist hive that 99% of Harvard has become, and is hardly a “Trump supporter,” which is the now reflex “Shut up!” response to any attempt to break through the “resistance” coup mindset that has become a plague on the web and elsewhere. Dershowitz is pleading anyone who will listen that he deserves plaudits rather than condemnation (one twitter follower calls him a “monster”) for trying to be objective and non-partisan, and I feel his pain, but his protests are unseemly, and undermine the real ethical service he has performed.
The famous Harvard professor states clearly what the news media and Democrats have intentionally tried to obscure: there was no collusion, no crimes related to collusion, and the investigation report says so unequivocally. The report presents “no evidence of any criminal behavior by President Trump or his campaign with regard to Russia,” he writes. Correct. He also remind us, as few media reports have, that this is a one-sided case. There was no cross-examination of witness or challenges to the conclusions of prosecutors, and the document should be read in that light.
As I expected, Dershowitz make an irrefutable argument that the whole process was tainted by conflicts of interest, since Asst. AG Rod Rosenstein, charged with overseeing the investigation, was both a key witness and a potential defendant.
On the more confusing matter of obstruction, he clarifies that as well, particularly by knocking down the theory that a President can be found to have committed a crime by doing something he has clear Constitutional power to do. Dershowitz (and others) have been making this point since the hypocritical uproar over the Comey firing, and he has case law (which you can see from the excerpt above) and legal tradition to back it up. The professor cites the ancient legal principle of Nulla poena sine lege ( “no penalty without a law”, which olds that one cannot be punished for acts not prohibited by law. This is codified in modern democratic states as a basic requirement of the rule of law, and has been described as “one of the most widely held value-judgement in the entire history of human thought.”
Yeah, but we want to impeach Trump!
Dershowitz writes that Attorney General William Barr’s statement that:
…the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense. Our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.” (loc. 62)
Dershowitz said calls that statement from Barr “a complete legal exoneration”. This is also correct, since the Justice Department is charged with the task of making a determination based on the evidence presented to it by the Special Counsel.
Dershowitz writes thatMueller conducted a “generally fair prosecutorial investigation of the facts” but criticizes Mueller for failing to do his job by making a clear call about the obstruction charges. Dershowitz says that there was obviously a divide on the team—not surprising, given how many predictably over-zealous types and Democrats Mueller chose for his staff—with many lawyers favoring an obstruction charge, and many others believing the the evidence was weak. Still, it was the Special Counsel’s job not to pass the buck. Many, though not Dershowitz in the report, feel that the dodge constituted a conscious, partisan act to give Democrats some hope for the impeachment/cpip they seek “by any means necessary.”
Regarding the fourteen indictments that came out of the investigation., Dershowitz places them in nto three categories: financial crimes committed by people in Trump’s “sphere” before he became president; “process crimes” such as perjury, and the symbolic indictments against Russian corporations and individuals. Dershowitz frames the first group with this quote from Judge Ellis’s comments to the prosecutors in the Paul Manafort trial:
You don’t really care about Mr. Manafort’s bank fraud—what you really care about is what information Mr. Manafort could give you that would reflect on Mr. Trump or lead to his prosecution or impeachment.
“This vernacular to ‘sing’ is what prosecutors use. What you’ve got to be careful of is that they may not only sing, they may compose.”
He also argues persuasively that it is unethical for a prosecutor to report all kinds of damning stories, allegations and testimony that did not result in criminal charges. This is done all the time, it is true, but he is right. He also predicted the fallout from Mueller doing this, saying months ago that he doubted that the investigation would find any crimes that the President could be charged with, but that the report would probably be filled with embarrassing material. Since those seeking to find some way to get rid of the President without the inconvenience and uncertainty of an election really just want to impeach and have been looking for any pretense to do so, this has resuscitated the “he’s unfit for office!” justification, a false one. The unsettling character traits that Trump was well-known for years ago are on ugly display in the report, but bad character is not a justification for impeachment. The election was an official certification of “fitness.”
Dershowitz also argues that there shouldn’t have been a Special Counsel (The Justice Department should have done the job), shouldn’t have been a written report if there was one, and that the report shouldn’t have been made public if there was a written report. He omits—and maybe this is his sop to his fellow progressives, so that eventually he’ll escape his exile to Fox News and get invited to those toney Martha’s Vineyard parties again some day—the little detail of how Hillary and the Steele Memorandum leaked to the media created false suspicion that the Trump campaign had conspired with Russia to steal the 2016 election. That’s why a Special Prosecutor was unavoidable. There had to be a written report, because as Dershowitz points out, there is a parallel to the FBI investigation of Hillary’s illegal email use, which resulted in no written report, and is still a source of controversy as a result. And obviously the Attorney General could never avoid making the report public.
Although Dershowitz’s analysis isn’t perfect, and he could not avoid celebrating himself for remaining objective while all about him were losing their heads and blaming it on him, as Kipling would say, anyone who wants to claim to have an informed opinion rather than just virtue-signal their hatred for the President has an obligation to read Dershowitz’s analysis, which is fair, non-partisan, and persuasive.
It also makes him an Ethics Hero, though it would have been better if he hadn’t told us so himself.
Here is the Kindle edition of The Mueller Report: The Final Report of the Special Counsel into Donald Trump, Russia, and Collusion.
Ethics Alarms 
On the other hand, Fox News’s legal guru, Judge Andrew Napolitano, makes a persuasive (to me) case that Trump acted criminally by committing many acts that attempted to obstruct an investigation into his own behavior.
I’ll go with the Fox News guy here:
https://www.foxnews.com/opinion/judge-andrew-napolitano-did-president-trump-obstruct-justice.amp?__twitter_impression=true
The mere act of firing a subordinate can not constitute obstruction of justice. That is where I disagree with Napolitano.
There can be all sorts of reasons for firing a subordinate, some virtuous, some corrupt. E.g., if the subordinate is an honest whistleblower, or if the subordinate is a vcitim of your sexual harrassment and complaining. Many reasons.
Because executive employees exercises a portion of the powers of the Presidency, for Congress to place legal restraints on firing these employees would effectively grant tgese employees executive power independent of the President, which is not constitutionally allowed.
Comey did so many things wrong that I would have fired him before Trump did. The fact that Comey gave classified information someone with instructions to leak to the press to get back at Trump for firing him only confirms that Trump made the right call on that one.
This alone merits a jail cell for Comey.
Anyone want to explain why he is not sitting in one, other than ‘Orange man bad?’
Ethics Bob wrote, “On the other hand, Fox News’s legal guru, Judge Andrew Napolitano, makes a persuasive (to me) case that Trump acted criminally by committing many acts that attempted to obstruct an investigation into his own behavior.”
Ethically Trump is a dunce, but acted criminally to “attempt”? Something seems off here.
Can a real lawyer explain what’s seem of that I can’t put my finger on?
Read the Napolitano piece, or just watch the embedded video.
I read it. I think he’s completely wrong. So do a great many other jurists.
That doesn’t necessarily make him so, but his opinion is just that — an opinion. I happen to think he’s mistaken.
Ethics Bob read, “Read the Napolitano piece, or just watch the embedded video.”
I did read it, that’s why I had questions, it didn’t make sense to me other than it’s his opinion. After more thinking about this I put Napolitano’s opinion on this at about an equivalent level of making anything leading up to a possible crime a criminal offense, sort of like this;
Person A want’s a convenience store robbed, so he asks person B to do his bidding, person B says no and the robbery doesn’t take place, did person A commit a crime – no.
Person A want’s to rob a convenience store, he get’s his legally owned firearm, puts the firearm in his pocket, he is legal to carry concealed, drives to the store, walks inside the store, decides not to rob the store but he needs a six pack of soda, he buys the soda, leaves, and goes home – did he commit a crime – no.
It’s insane to charge Person A with a robbery that never happened.
Briefly on the subject of Judge Andrew Napolitano; I think if you start counting his twisted around “legal” opinions as true and false, I think he might be somewhere between 50/50 or 60/40 and it doesn’t matter which way the 60/40 goes I think that’s terrible running totals for a “judge”! It seems to me that Napolitano comes up with a conclusion and then he states things in such a way as to be relatively convincing to others. I currently value his opinion at the same level as Rush Limbaugh’s opinion, he wrong so often that I don’t give a damn what he says anymore.
Agree with not caring what Napolitano says: he is an elitist snob, and despises the public he once served. A ‘Swamp Member’ feeling the lower water levels and panicking.
I wrote about the “attempted obstruction” theory earlier this week. 1) When a client asks a lawyer to do something the lawyer thinks is illegal, that’s not an attempted illegal act. 2) The President could have done every single thing the “judge” (he’s not a judge, by the way) referenced if he wanted to. 3) Wanting to fire Mueller and even doing it, as Dershowitz says, can’t possibly be obstruction, because the acts are legal. 4) Mens rae is impossible to show. The President was trying to rein in an investigation he regarded as a political attack on him and the Presidency. I agree with him. 5) He was innocent, and knew it. This is why Ty Cobb III reportedly told him to chill out—there was nothing to fear. But the whole obstructing an investigation into a non-crime obstructs justice is a bridge too far.
But hey, you could argue that Trump is Jack the Ripper, and it wouldn’t allow my exhilaration at seeing your name in the Comments!
ETHICS BOB!
ETHICS BOB!
ETHICS BOB!
ETHICS BOB!
(That was a blog chant…)
In a similar vein, as you pointed out, pardoning Marc Rich was not the crime of obstructing justice.
Great that my mentor welcomed back the Prodigal Son. I’m still not reformed, but I try to think and write sensibly about ethics.
Apparently I need to defend JUDGE Napolitano’s reputation. He served for eight years on the New Jersey Superior Court. Says Wikipedia:
https://en.wikipedia.org/wiki/Andrew_Napolitano
Oh, he WAS a judge. But judicial tradition is that an ex-judge cannot call himself “judge.” It’s not like the military, and Fox (and “Tony”) allow audiences to think he IS a judge. One of several reasons I don’t trust the guy—I was alaos once on a panel with him.
Napalitono also stated that the two Chicago brothers lawsuit would go no where because they are public figures and the 2 would have to prove malice. These two guys were unknowns until this case.
Napolitano has made a number of legal errors recently that even non lawyers can recognize when he trys to justify his positions
EB
I would like to remind you there are two countervailing points of view in all legal disputes. The Mueller report has within in unrebutted claims not unrebuttable claims.
Napolitano’s analogy about a neighbor attempting to prevent his testifying is faulty because the neighbor committed a felonious act to create obstruction. Lets change his analogy slightly. Your neighbor does not want you to testify at a court hearing. In the morning as you are leaving to testify the two if you are involved in an MVA. You get to court late and testify anyway irrespective of the vehicle crash. According to Napolitano your neighbor is guilty of obstruction.. Good luck proving that the MVA was intentional.
Let me suggest that Dershowitz is stealing Napolitano’s thunder in this matter on Fox so the Judge decides to take the opposing side to keep his appearance fees flowing. Dershowitz has been pushing his latest book The Case Against Impeaching Trump for months on Fox crowding out Judge Napolitano.
One thing I know is lawyers are advocates for the side that can pay them or they don’t advocate at all. In fairness, there are some attorneys that are cause advocates for things they believe in. I do not think Napolitano believes the theories he is espousing.
I assume that both Dershowitz and Napolitano believe what they’re saying. Personally, I go with Napolitano.
I read the “10 instances of obstructive conduct” but I was really not convinced. The fact remains that Muller was not discharged, his scope was not limited (in fact it was expanded if I understand correctly). No one stopped Muller from performing his duties. Where is the obstruction here? With Watergate Nixon actually did fire Cox. Also, the Watergate and Clinton reports did find crimes. This report did not find crimes.
Am I missing something here?
Expect Alan Dershowitz to not toot his own horn? Might as well expect him to not breath.
Sad, but true.
Just a quirk. He really has distinguished himself since 2016. Very impressive and admirable, actually. I suspect he really does miss the Smart Set on Martha’s Vineyard.
Dershowitz is acting like a child when it comes to protesting his objectivity. I suspect his petulance is partially explained by his advancing age. It takes an emotional toll.
Dershowitz does not need to state that there was no collusion — Mueller already did that, and even though some of the brain-dead bitter-ender TDS-maddened Democrats and never-Trumpers have rejected that conclusion, it isn’t really rebuttable.
Yes, this was clearly a conflict. It is also curious why the partisan makeup of his team was so dramatically tilted toward the President’s enemies. I suppose it could be said that if that group couldn’t make up their minds about indictable crimes, then it’s hard to imagine there were any. But I fear most of the media and aforementioned bitter-enders do not think that way.
This is the thing that puzzles me about some on the left. They suggest with a straight face that when Trump does something that he is empowered by the Constitution of the United States to do, the effect of that action can be an obstruction of justice. They believe this not because it is a defensible legal position, but because they are absolutely dead certain it must be based on a corrupt motive — primarily because they believe Trump incapable of anything but a corrupt motive.
By this theory, all that any AG would have to do is open an investigation into something tangentially related to the incoming president to inoculate himself from every being replaced on pain of an obstruction charge. Any US attorney who wanted to keep his job could do the same. Easy peasy.
Again, the Democrats are making the case, without explicitly saying so, that any appointee of Trump cannot administer justice impartially, regardless of their qualifications. They conclude that Trump is entirely driven by corrupt intent.
Absolutely right, but the Democrats, as we know, do not trust the American people whatsoever with making such a judgment. That’s why they are working as hard as they can to amend the Constitution, or use an unconstitutional interstate compact to try to undo the requirements of the Constitution that they think Americans are too stupid to properly execute.
Moral and ethical judgments about fitness for office are only made during an election. That’s why the Constitution doesn’t include moral turpitude, ethical stupidity, or questionable judgment as prerequisites for an impeachment proceeding. The Founders trusted those types of judgments to the people during the election, and no doubt assumed they would get it mostly right. Both sides may question that judgment, but it’s better than the alternative.
I suppose Dershowitz deserves the label of an Ethics Hero, even if he makes himself a lot less heroic by tooting his own horn to excess.
Saw this video this morning – could not resist posting – a Don McLean knock-off: