Federal judge rightly rebukes Mueller for questionable tactics

An experienced federal judge has confirmed what I have been arguing for months, namely, that the modus operandi of special counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE is to charge associates of Donald Trump with any crime he can find in order to squeeze them into turning against the president.

This is what Judge T.S. Ellis III said at a hearing Friday: “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.”

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This tactic is as old as Adam turning against Eve. But, as the judge correctly pointed out, it risks the possibility that the squeezed witness will not only sing, he will compose. Here is what Ellis said about that: “This vernacular is to ‘sing,’ is what prosecutors use. What you got to be careful of is, they may not only sing, they may compose.”

I have been using this “compose” metaphor for decades and I am gratified that a judge borrowed it to express an important civil liberties concern. Every experienced criminal lawyer has seen this phenomenon at work. I have seen it used by prosecutors who threaten wives, parents, siblings and, in one case, the innocent son of a potential witness who was about to graduate law school. Most judges, many of whom were former prosecutors, have also seen it. But few have the courage to expose it publicly, as Ellis has done.

Defenders of Mueller’s tactic argue that the threatened witnesses and their relatives are generally guilty of some crime, or else they wouldn’t be vulnerable to the prosecutor’s threats. This may be true, but the crimes they are threatened to be charged with are often highly technical, elastic charges that are brought only as leverage. They are dropped as soon as the witness cooperates.

This was precisely the point Ellis was making with regard to Manafort. A similar point could be made with regard to Trump’s former national security adviser, Michael Flynn, and perhaps to his personal attorney, Michael Cohen. Indeed, Flynn pleaded guilty to a highly questionable charge precisely because his son was threatened with prosecution.

Civil libertarians have long criticized this tactic, since the time it was used by Joseph McCarthy and his minions to pressure witnesses to testify against suspected communists in the 1950s. In recent decades it has been deployed against mobsters, terrorists and corporate predators. But Ellis has accused Mueller of using this questionable approach to develop a political case against the duly elected president of the United States.

For those who argue that everything is fair, if the goal is to prevent a president from being above the law, Ellis provided a compelling response: “What we don’t want in this country, we don’t want anyone with unfettered power … It’s unlikely you’re going to persuade me the special counsel has unlimited powers to do anything he or she wants.”

He was referring to the manner by which the special counsel was using his power to “tighten the screws” on Manafort by indicting him for an alleged crime that the judge believes has nothing to do “with what the special counsel is authorized to investigate.” Civil libertarians should be applauding Ellis for seeking to cabin the “unfettered power” of the special counsel to do “anything he wants.” But no, because his ruling may help Trump, and because Trump has applauded it, the civil liberties and criminal defense communities have not been heard from.

The judge has not yet ruled on the propriety of the special counsel’s actions, and it is unlikely he will dismiss the charges against Manafort. But Mueller is on notice that he may not have unfettered power to indict Trump’s associates for old crimes that are unrelated to the Russia investigation for the purpose of making them sing or compose against the president. The civil liberties community no longer has an excuse to ignore or defend, as some have done, tactics that pose considerable dangers to civil liberties, just because they are being used against Trump.

Last week was not a good one for special counsel Mueller. Nor was it particularly good for Trump, as his new lawyer Rudy Giuliani presented a somewhat garbled narrative with regard to the payments made to adult film star Stormy Daniels. But it was an excellent week for the Constitution and for all Americans, because a federal judge made it clear that no one — not even the special counsel — is above the law and beyond scrutiny by our system of checks and balances.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. He is the author of “Trumped Up: How Criminalizing Politics is Dangerous to Democracy” and “The Case Against BDS: Why Singling Out Israel for Boycott is Anti-Semitic and Anti-Peace.” You can follow him on Twitter @AlanDersh and on Facebook @AlanMDershowitz.