Federal judge agrees nonpartisan commission beats special counsel

Federal Judge T.S. Ellis, a distinguished jurist from Virginia, has just written an opinion denying former Trump campaign manager Paul ManafortPaul John ManafortCohen questioned for hours in Mueller probe about Trump's dealings with Russia: report Vote Democrat in midterms to rein in Trump, preserve justice Hillicon Valley: Trump's exclusive interview with Hill.TV | Trump, intel officials clash over Russia docs | EU investigating Amazon | Military gets new cyber authority | Flynn sentencing sparks new questions about Mueller probe MORE’s motion to dismiss the charges against him. Judge Ellis rejected the defense argument that special counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE had exceeded his authority by investigating and prosecuting alleged crimes that preceded the 2016 election and that had little or nothing to do with Russian collusion in the election. But in rejecting this legal attack on the scope of the special counsel, Judge Ellis went out of his way to say that his decision should not be read as approving the appointment of a special counsel.

This is what he wrote: “[This] conclusion should not be read as approval of the practice of appointing Special Counsel to prosecute cases of alleged high-level misconduct. Here, we have a prosecution of a campaign official, not a government official, for acts that occurred well before the presidential election. To be sure, it is plausible, indeed ultimately persuasive here, to argue that the investigation and prosecution has some relevance to the election which occurred months if not years after the alleged misconduct. But in the end that fact does not warrant dismissal of the superseding indictment. The Constitution’s system of checks and balances, reflected to some extent in the regulations at issue, are designed to ensure that no single individual or branch of government has plenary or absolute power. The appointment of special prosecutors has the potential to disrupt those checks and balances, and to inject a level of toxic partnership into investigation of matters of public importance.”

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In a footnote, the judge echoed a proposal I made a year ago and had been much criticized by pundits: “A better mechanism for addressing concerns about election interference would be the creation of a bipartisan commission with subpoena power and the authority to investigate all issues related to alleged interference in the 2016 presidential election. If crimes were uncovered during the course of the commission’s investigation, those crimes could be referred to appropriate existing authorities within the [Department of Justice].”

The judge concluded his opinion with wishful thinking: “This case is a reminder that ultimately, our system of checks and balances and limitations on each branch’s powers, although exquisitely designed, ultimately works only if people of virtue, sensitivity, and courage, not affected by the winds of public opinion, choose to work within the confines of the law. Let us hope that the people in charge of this prosecution, including the Special Counsel and the Assistant Attorney General, are such people. Although this case will continue, those involved should be sensitive to the danger unleashed when political disagreements are transformed into partisan prosecution.”

Although I generally agree with the judge’s nuanced assessment of the role for special counsel, I respectfully disagree that our system of checks and balances ultimately depends on the virtue of the individuals who serve in the three branches of government. James Madison, who was largely responsible for devising and defending our unique system of checks and balances, believed that “if men were angels” we would need no government. Nor would we need the cumbersome mechanisms of checks and balances. It is precisely because government officials too often lack virtue, and too often place partisanship over principle, that we need institutional checks. As Madison wrote, “If angels were to govern men, neither external nor internal controls on government would be necessary.” But because humans govern other humans, we need “the auxiliary precautions” of institutional checks and balances.

It is for that reason, and not because I distrust Robert Mueller personally, that I oppose special counsels in situations like the current one. The risks alluded to by Judge Ellis, in my view, outweigh the benefits. This does not mean that Judge Ellis was wrong in his legal decision. Just as there is a determinative difference between sin and crime, there is a difference between principled opposition to special counsels and a legal conclusion that this counsel’s appointment was unconstitutional or that he exceeded his powers. Since I am not a judge, it is enough for me to join Judge Ellis in his conclusion that a nonpartisan commission would have been “a better mechanism for addressing concerns about election interference.”

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 Impeaching Trump.” He is on Twitter @AlanDersh and Facebook @AlanMDershowitz.