Alan Dershowitz: What will the new year bring for Mueller and Trump?

The special counsel report should be completed early in this new year. Because Robert MuellerRobert (Bob) Swan MuellerTrump calls for probe of Obama book deal Democrats express private disappointment with Mueller testimony Kellyanne Conway: 'I'd like to know' if Mueller read his own report MORE has been commendably tight lipped with regard to the investigation, as distinguished from his overly talkative friend and fired FBI director James ComeyJames Brien Comey3 real problems Republicans need to address to win in 2020 Barr predicts progressive prosecutors will lead to 'more crime, more victims' James Comey shows our criminal justice system works as intended MORE, we can only infer from public record actions, such as indictments and guilty pleas, what the report contains.

What should the legal team of President TrumpDonald John TrumpTrump pushes back on recent polling data, says internal numbers are 'strongest we've had so far' Illinois state lawmaker apologizes for photos depicting mock assassination of Trump Scaramucci assembling team of former Cabinet members to speak out against Trump MORE be doing in anticipation of its release? What should Justice Department officials, particularly Deputy Attorney General Rod RosensteinRod RosensteinWhy the presumption of innocence doesn't apply to Trump McCabe sues FBI, DOJ, blames Trump for his firing Rosenstein: Trump should focus on preventing people from 'becoming violent white supremacists' MORE, Acting Attorney General Matthew Whitaker, and Attorney General designate William Barr, be planning to do? What should the Democratic led House and the Republican led Senate be doing? How should the media prepare for the rollout? Most importantly, how should the American public evaluate the report and react to it?

I will try to answer these questions from the perspective of a liberal Democrat who voted for Hillary ClintonHillary Diane Rodham ClintonTop Sanders adviser: Warren isn't competing for 'same pool of voters' Anti-Trump vets join Steyer group in pressing Democrats to impeach Trump Republicans plot comeback in New Jersey MORE and for Democratic Senate and House candidates in the 2016 election, and who tries his best to be a neutral civil libertarian who would be making the same observations if the shoe were on the other foot, if Secretary Clinton were president and a special counsel were about to issue a report on her and her colleagues.


The legal team of President Trump should be preparing, as all good lawyers always do, for worst case scenarios. His attorneys should not engage in wishful thinking but should be brutally realistic with themselves and their client. This will no doubt be a tough and accusatory report. I have characterized it as politically devastating, as most such reports have tended to be. It also may be legally daunting, though I am aware of no compelling evidence of serious or impeachable crimes by President Trump. The fact that so many close to the Trump campaign and the Oval Office have been charged with crimes in the investigation will form an atmospheric backdrop to the nature of the special counsel report.

It must be remembered by all, especially the media, that this report, like all federal investigative reports and actions, will be one sided. It will present the evidence gathered by prosecutors and will not be subject to cross examination or rebuttal. It need not include exculpatory evidence, even if such evidence is known to prosecutors. There is no constitutional requirement that prosecutors must disclose exculpatory evidence at trial.

All of this is why the legal team of President Trump should demand, as a matter of basic fairness, that the special counsel report should not be released to the public or to Congress until his attorneys have a reasonable opportunity to study it and file a response. Then both the report and the response should be released simultaneously. Justice Department officials should be thinking about a realistic schedule for the release of these two documents, with sufficient time to prepare the response. Officials should also be ready to consider requests from each side for redactions based on national security, but there should be a presumption of openness with a burden of justification on anyone seeking redactions in the documents.

Congress should not get the report nor the rebuttal until they is released to the public. As soon as lawmakers get anything as politically explosive as these are likely to be, there will be leaks. Both houses will then have the authority to call witnesses, including Mueller and the witnesses he relied on. So the report will be the beginning, not the end, of investigations.

There will be some House Democrats who will seek to begin impeachment proceedings, regardless of the findings. There also will be some House Republicans who will just as automatically oppose impeachment. The media should, but probably will not, report fairly on the documents. If the past is prologue, we should expect diametrically opposite descriptions and analysis from pro-Trump and anti-Trump media. This is precisely why it is so important for all Americans to read these documents and decide for themselves without being unduly influenced by the partisan media.

A key consideration in evaluating the report and the rebuttal is to bear in mind the distinction between political sins and statutory crimes. It is not the proper province of prosecutors, even of a special counsel, to find wrongdoing, even grievous wrongdoing not expressly prohibited by existing statutes. That was the crucial mistake made by Comey when he announced that Clinton was “extremely careless” but not guilty in her handling of emails. Unlike Congress, which is empowered to decide what the law should be, a special counsel is limited to existing criminal law.

As we anticipate what is come as the investigation concludes, there is more at stake than the legacies of Donald Trump and Robert Mueller. The rule of law is being challenged by both sides of our extreme partisan divide. The American public is entitled to fair application of the rule of law without regard to political consequences. The president is tasked by the Constitution to take care that the laws be faithfully executed. The special counsel is obliged to administer justice without regard to party or person. This new year will surely test these important principles of democracy.

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.