For the past two years, famed liberal attorney and retired Harvard law professor Alan Dershowitz has been a rather rare species in terms of the current political climate regarding President Donald Trump and special counsel Robert Mueller.
On the one hand, Dershowitz consistently maintained that Trump enjoyed a presumption of innocence until proven otherwise.
Still, he defended Mueller, who was probing allegations of Russian collusion in the 2016 election, as a man of integrity.
And he seemed to truly see Mueller’s investigation as a fair and nonpartisan proceeding in an apolitical justice system.
But that changed on Wednesday following Mueller’s televised news conference, where he rather unsubtly implied Trump’s guilt and seemed to encourage, with an equal amount of subtlety, the Democrat-led House of Representatives to pursue impeachment.
In an Op-Ed for The Hill published Wednesday, Dershowitz wrote that Mueller’s actions this week were on par with, and in some ways perhaps even worse than, what disgraced and fired FBI Director James Comey did in 2016.
Comey, you may remember, gave a televised statement explaining why the FBI would not be recommending that former Secretary of State Hillary Clinton be charged in relation to her use of a private email server.
“Comey was universally criticized for going beyond his responsibility to state whether there was sufficient evidence to indict Clinton. Mueller, however, did even more,” Dershowitz wrote Wednesday.
“He went beyond the conclusion of his report and gave a political gift to Democrats in Congress who are seeking to institute impeachment proceedings against President Trump,” he continued.
Mueller’s implication that Trump had obstructed justice, Dershowitz explained, served as an invitation to Democrats to launch their impeachment efforts.
“Until today, I have defended Mueller against the accusations that he is a partisan,” Dershowitz wrote. “I did not believe that he personally favored either the Democrats or the Republicans, or had a point of view on whether President Trump should be impeached.”
“But I have now changed my mind. By putting his thumb, indeed his elbow, on the scale of justice in favor of impeachment based on obstruction of justice, Mueller has revealed his partisan bias,” he added.
According to Dershowitz, it’s widely understood that prosecutors are never supposed to go further than the evidence takes them, particularly with respect to the public, and that “no responsible prosecutor” would ever publicly imply the guilt of an individual if there was insufficient evidence to prove that guilt beyond a reasonable doubt in a court of law.
Those fundamental rules don’t change just because the subject of the investigation is Trump, or because Mueller is a special counsel, or because this was an extraordinary case.
Dershowitz wrote that unlike in a “full adversarial trial” where defense attorneys are permitted to cross-examine witnesses, produce exculpatory evidence of innocence and enjoy the other safeguards of due process, federal investigations are often “one-sided” affairs.
In federal investigations, especially those involving a special prosecutor, Dershowitz wrote, “They hear only evidence of guilt and not exculpatory evidence. Their witnesses are not subject to the adversarial process. There is no cross-examination. The evidence is taken in secret behind the closed doors of a grand jury.”
“For that very reason, prosecutors can only conclude whether there is sufficient evidence to commence a prosecution. They are not in a position to decide whether the subject of the investigation is guilty or is innocent of any crimes,” Dershowitz added.
He was likely referring to Mueller’s ludicrous remark that he was unable to exonerate Trump of wrongdoing, something Mueller wasn’t supposed to do, and indeed is likely incapable of doing.
Dershowitz wrote that the “safeguards” of an adversarial trial “were not present in this investigation, and so the suggestion by Mueller that Trump might well be guilty deserves no credence. His statement, so inconsistent with his long history, will be used to partisan advantage by Democrats, especially all those radicals who are seeking impeachment.”
“No prosecutor should ever say or do anything for the purpose of helping one party or the other,” Dershowitz wrote. “I cannot imagine a plausible reason why Mueller went beyond his report and gratuitously suggested that President Trump might be guilty, except to help Democrats in Congress and to encourage impeachment talk and action.”
“Shame on Mueller for abusing his position of trust and for allowing himself to be used for such partisan advantage,” he added.
Dershowitz is absolutely right.
Shame on Mueller indeed, and shame on anyone who defends what may very well be one of the worst instances of prosecutorial misconduct this nation has seen in some time.
Mueller may just have traded in his integrity and reputation to try and help impeachment-obsessed Democrats perpetuate their baseless “witch hunt” against the president they despise.
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