Dershowitz: If Mueller Knew He Couldn't Indict The President, Why Did We Have A Special Counsel?


In an interview with FOX News Channel's "MediaBuzz" host Howard Kurtz, professor emeritus at Harvard Law School Alan Dershowitz weighed in on the conclusion of the Mueller investigation and wondered if Mueller "knew he could not indict a sitting president under Justice Department regulations," "why did we have a special counsel at all?"

HOWARD KURTZ, FOX NEWS: Joining us now is Alan Dershowitz, the Harvard Law professor who wrote the introduction to the Mueller report, the final report of the special counsel into Donald Trump, Russia, and collusion. Let me ask how the media have covered Robert Mueller, especially in his televised appearance this week, as an upstanding figure trying to get to the truth?

ALAN DERSHOWITZ: No, I think what happened is the media always substitutes wishful thinking for careful analysis. If there had been a Mueller report about Hillary Clinton or a Democrat and Mueller had done the same thing he did here, that is basically say, look, if the information had proved he was totally innocent we would have said so, many in the media would have attacked that as beyond the proper scope of a prosecutor. The media does not pass the "shoe on the other foot" test. If the political parties were reversed the media would not be consistent. It would always accept its ideology over reporting and I think particularly pundits. The reason so many pundits have been wrong in predicting things and the reason I have been right in predicting almost everything is not that I'm any smarter, but I don't substitute wishful thinking for careful legal analysis.

HOWARD KURTZ: You say until his televised appearance you were defending Bob Mueller as not being a partisan who favored one side over the other. Did you get a lot of grief on that from your liberal friends?

ALAN DERSHOWITZ: Of course I did. From both sides. I get grief from both sides constantly because I don't satisfy either side by my hopefully neutral analysis, but I have never thought he was a partisan but when he made that statement he not only put his thumb, he put his elbow on the scale. It was clearly intended to encourage impeachment by the House. First of all, it is not the proper object of a special counsel to do the investigation for Congress. That violates the separation of powers. It is Congress that has to do its own investigation and has to take political responsibility for doing it. When they shut that off to special counsel, special counsel take the responsibility it destroys the system of checks and balances.

HOWARD KURTZ: If Mueller was trying to encourage pro-impeachment Democrats on the Hill, he wasn't exactly explicit about it when he voted the constitution as saying another remedy for this, not the committal justice system, he was quoting a DOJ memo about not being able to indict a sitting president. What makes you so sure he is urging Congress to impeach. I didn't hear those words.

ALAN DERSHOWITZ: You didn't hear those words, but the music was quite clear. He learned nothing new during the report about the Justice Department or the Constitution. He knew on day one he could not indict a sitting president under Justice Department regulations. And so, the question that comes up is, why did we have a special counsel at all? Why didn't we have a nonpartisan independent expert commission looking into Russian efforts to influence the election, which are continuing in the 2020 election? That would be the way to go in light of the fact that we now know the Justice Department and Mueller concluded the result of the special counsel could not be the indictment of the president.

HOWARD KURTZ: Part of the reason people will say it was good Mueller had the investigation was a nonpartisan commission can't indict Russians and can't indict people like Paul Manafort and Mike Flynn.

ALAN DERSHOWITZ: What benefit came from indicting the Russians? The Russians can't be charged. Manafort was indicted for something unrelated, as the judge in the Manafort case said, the prosecutor wasn't interested in Manafort, they were interested in squeezing him to make him sing, compose against President Trump. So what was the purpose of that? I just think it was a futile effort and it would have been better to have a nonpartisan investigation like we had after 9/11. If the nonpartisan investigation had evidence of crimes that could be turned over to ordinary prosecutors.

HOWARD KURTZ: You say prosecutors are not supposed to trash people. If you don't indict, you don't do as Jim Comey did in a news conference, say this is a bad person who did terrible things. Mueller, as an independent counsel, was supposed to write a report to the attorney general, and in the report he lays out the facts, as is his job.

ALAN DERSHOWITZ: His job was to file a report with the attorney general. Nothing in the rules says the negative and critical material about innocent people should be released to the public. I suspect we have seen the last special counsel. I think, I hope, Congress will have hearings to try to determine whether the special counsel should be trashed the way the special prosecutor was. We have seen the death knell of special prosecutors, special counsel and I hope the Mueller report is the last special counsel report we have. It is inconsistent with the role of prosecutors, inconsistent with the presumption of innocence and inconsistent with the constitutional system of separation of powers.

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