The good news is obvious. Robert Mueller is a good choice to become the special counsel investigating the Trump campaign and administration. The bad news is that a special counsel is the wrong mechanism for conducting an investigation that will uncover the whole truth.
The mandate of the special counsel is to “prosecute federal crimes arising from the investigation.” But the accusations directed at the Trump campaign and administration are not primarily criminal. Accordingly, they fall outside of the jurisdiction of the special counsel.
Consider the worst-case scenario that the Trump campaign worked closely with the Russians to ensure his election. It probably didn’t happen, but even if it had, there would be nothing criminal about it. It would be wrong and voters would be right to consider this and make them pay a political price. But it is not the role of the special counsel to expose wrongdoings — only to investigate and prosecute crime. And not all wrongdoing is criminal: coordination with the Russians is simply not a crime.
The same is true of providing Russians with secret intel that may have endangered sources and methods of an ally — Israel. It was wrong, but it was not a crime. The special counsel has no jurisdiction to investigate or prosecute this important blunder — if it occurred.
Finally, there is the allegation of obstruction of justice growing out of President Trump’s firing of FBI Director James Comey and his alleged request to Comey to “let it go” with regard to his fired national security advisor Michael Flynn. None of this, in my view, rises to the level of criminal obstruction, because all of the president’s actions were within his constitutional and statutory authority. But even if it were a crime, it is unlikely that a sitting president could be indicted and prosecuted for what is alleged against Trump.
Nor does the special counsel have the authority to draw up a bill of impeachment, even if one were warranted — which it is not, at least on the basis of the available evidence. That authority resides in the House of Representatives.
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.
It would have been far better for this country if Congress had appointed a nonpartisan investigatory commission to uncover the whole truth, including noncriminal wrongdoing, not only on the part of the Trump campaign and administration, but also on the part of those current and former intelligence officials who willfully leaked classified and highly secret information to the media.
That is one issue that is within the jurisdiction of the special counsel because it involves serious federal felonies. It would be ironic if the only indictment resulting from the special counsel's investigation was of the intelligence officials who unlawfully leaked classified information.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School and author of Taking the Stand: My Life in the Law and Electile Dysfunction: A Guide for the Unaroused Voter. Follow him on Twitter @AlanDersh or Facebook @AlanMDershowitz.
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