Dershowitz: Should Mueller report comment on noncriminal conduct?

There has been much speculation in the media regarding special counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE purportedly securing evidence of collusion between the Trump campaign and Russian operatives. Revelations in some documents growing out of the federal case against Paul ManafortPaul John ManafortNadler: I don't understand why Mueller didn't charge Donald Trump Jr., others in Trump Tower meeting Trump Tower meeting: A shining example of what not to investigate Ex-Obama White House counsel's trial set for August MORE suggest that he, while managing the Trump campaign, may have provided some internal polling data to Russian operatives, and thus may have colluded with them.

We do not know whether the evidence supports such a conclusion, but let us assume, for the purposes of a legal analysis, that Mueller does come up with compelling evidence of collusion between the Trump campaign and Russian operatives. A search of federal statutes makes clear that such collusion by itself would not constitute a crime. There is no statutory crime of collusion except between business competitors in the antitrust context. Collusion between a presidential campaign and a foreign power would certainly be a political sin, but it would not be a federal crime without proof of any conduct that is specifically prohibited by statute.

ADVERTISEMENT

If the collusion took the form of someone in the Trump campaign directing Russian operatives to hack the Democratic National Committee or the Clinton campaign, that might constitute an independent federal crime. However, the mere use by a presidential campaign of material previously hacked by the Russians would be as protected by the First Amendment as the use by the New York Times of material previously obtained by Edward Snowden, Chelsea Manning, or Daniel Ellsberg.

So what would the legal responsibility of Mueller be if he concluded that members of the Trump campaign had colluded with Russian operatives without committing any federal crimes? Would it be proper for him to include evidence of such noncriminal collusion in his report? Would it be proper for him to opine on the propriety of such noncriminal collusion?

Recall the criticism directed at former FBI director James ComeyJames Brien ComeyThorny part of obstruction of justice is proving intent, that's a job for Congress Kellyanne Conway: Mueller didn't need to use the word 'exoneration' in report April Ryan slams Mike Huckabee in Twitter feud: 'Will you get into heaven? The answer is no!' MORE for his comments on the alleged noncriminal sins committed by Hillary ClintonHillary Diane Rodham ClintonThorny part of obstruction of justice is proving intent, that's a job for Congress Nadler: I don't understand why Mueller didn't charge Donald Trump Jr., others in Trump Tower meeting Kellyanne Conway: Mueller didn't need to use the word 'exoneration' in report MORE when she led the State Department. Comey said that Clinton had been “extremely careless” but that no reasonable prosecutor would pursue charges based on the evidence, and that there would be no indictment. His disclosure of her alleged political sins, and his expression that she was extremely careless, caused an outcry by Democratic loyalists and Clinton supporters. I was among those arguing that it is not the proper function of an FBI director or a prosecutor to comment on such noncriminal behavior.

All Comey should have done was to announce the decision not to indict Clinton because she had not committed any federal crimes. Why would it be different for Mueller to issue a report about the alleged noncriminal sins of the Trump campaign than it was for Comey to express opinions about the alleged noncriminal sins of Clinton? Why would it not be proper for Mueller to state any indictments and not to comment on noncriminal behavior allegedly engaged in by any members of the Trump campaign?

One difference is that Mueller is a special counsel, rather than a traditional prosecutor. The rules governing a special counsel provide for the issuing of a report to the attorney general, who may choose to make the report public. But a special counsel is still a federal prosecutor endowed with the power to indict or not indict. A special counsel is also constrained by the inherent limitations on that power applicable to all prosecutors. Do those limitations include constraints on the authority of prosecutors to disclose and opine on noncriminal behavior uncovered during their investigations?

ADVERTISEMENT

Recall that much of the evidence Mueller has gathered was given to a grand jury behind closed doors and subject to nondisclosure rules. This one sided evidence was not subject to cross examination, exculpatory contradiction, or impeachment. That is why an indictment is not evidence of guilt. Unless there is a guilty plea, it is a charging instrument leading to a trial during which the defendant has a full opportunity to challenge the determination made by the federal grand jury of probable cause.

A report that alleges noncriminal political sins does not lead to a trial at which evidence from the other side can be presented. For that reason, it might not be the proper role of a prosecutor or a grand jury to issue a report about possible noncriminal collusion between the Trump campaign and the Russians. The better way to have obtained information about Russian efforts to influence the 2016 election would have been to appoint a nonpartisan expert commission, such as the one appointed following the 9/11 attacks. Such a commission would have had broad authority to investigate noncriminal activities, including collusion, and to come up with proposals to prevent future Russian intrusions into our elections.

Alternatively, the FBI counterintelligence investigation that began before Mueller was appointed could have continued. According to the New York Times, “Unlike criminal investigations, which are typically aimed at solving a crime and can result in arrests and convictions, counterintelligence inquiries are generally fact finding missions to understand what a foreign power is doing and to stop any anti-American activity.” That might not be the proper function of either special counsels or ordinary prosecutors.

The issue I am raising, which is the propriety of a special counsel report including information and opinions regarding alleged noncriminal political sins, is worthy of serious nonpartisan discussion. It goes to the proper functions of the FBI, prosecutors, special counsels, and grand juries in a democracy that subjects them to checks and balances. This important national debate should take place before Mueller concludes his report.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. His new book is “The Case Against the Democratic House Impeaching Trump.” You can follow him on Twitter @AlanDersh.