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.