Harvard Law School emeritus professor, liberal Democrat, and noted defense lawyer Alan Dershowitz has penned an op-ed in the Hill opposing the appointment of a special counsel to oversee the investigation into possible ties between President Donald Trump’s 2016 presidential campaign and the Russian government.
Dershowitz makes a three-part case against the special counsel. First, he says, the Trump campaign is not facing criminal accusations. Second, he says, even if collusion were to be found between the Trump campaign and the Russian government, or if Trump were found to have divulged secrets to the Russian foreign minister, none of that would be illegal, and ought to be punished by voters, not prosecutors. Third, he argues, Trump’s decision to fire James Comey does not constitute obstruction of justice, and a special counsel could not impeach him anyway.
The only legitimate targets of a special counsel, Dershowitz says, would be “those current and former intelligence officials who willfully leaked classified and highly secret information to the media” over the past several months.
So what will the special prosecutor be doing? The short answer is that we don’t know and may never know, because he will be operating in secret. His most powerful weapon will be the grand jury, which has the power to subpoena witnesses to be questioned without their lawyers behind closed doors. It is a crime to disclose or leak grand jury testimony (except in special situations).
At the end of his super secret investigations, the special counsel has essentially three options: he can issue indictments and prosecute the defendants, he can issue a statement that no indictments are warranted and close down his investigation, or he can issue a report.
If he were to issue a report, it would be one-sided and based on an investigation not geared towards knowing the whole truth, but rather to develop and present to the grand jury sufficient evidence to show probable cause that a crime may have been committed. The grand jury hears only one side — the prosecutor’s. A report, based on no criminal investigation, is likely to be one-sided and incomplete.
Dershowitz writes that he would have preferred to see “a non-partisan investigatory commission to uncover the whole truth” about Russia’s role in the election.
Read Dershowitz’s entire op-ed here.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He was named one of the “most influential” people in news media in 2016. He is the co-author of How Trump Won: The Inside Story of a Revolution, is available from Regnery. Follow him on Twitter at @joelpollak.