The indictment of former Donald TrumpDonald TrumpStowaway found in landing gear of plane after flight from Guatemala to Miami Kushner looking to Middle East for investors in new firm: report GOP eyes booting Democrats from seats if House flips MORE associate Roger StoneRoger Jason StoneJan. 6 panel faces double-edged sword with Alex Jones, Roger Stone Jan. 6 panel subpoenas Proud Boys, Oath Keepers and leaders The Hill's 12:30 Report: Biden's strategy to lower gas prices MORE follows a long pattern that should raise serious concerns about the special counsel. Like virtually all of these indictments, this one does not charge any major crimes relating to Russia that were committed before the special counsel was appointed. It charges crimes that grew out of the investigation and were allegedly committed after Robert MuellerRobert (Bob) MuellerAn unquestioning press promotes Rep. Adam Schiff's book based on Russia fiction Senate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG MORE was appointed in 2017.
Recall that the primary job of the special counsel was to uncover crimes that had already occurred relating to Russian involvement in the 2016 election. Mueller also was authorized to investigate and prosecute crimes growing out of the investigation, such as perjury and obstruction of justice, but this role was secondary to the primary one. It turns out that the secondary role has produced many more indictments of Americans than the primary one. A review of all the indictments and guilty pleas secured by Mueller shows nearly all of them fall into three categories.
First are process crimes such as perjury, obstruction, false statements, and witness tampering that have resulted from the investigation itself. That does not make them any less serious, but it is relevant to evaluating the overall success or failure of the primary mission. Second are crimes that occurred before Mueller was appointed but that cover unrelated business activities by Trump associates. The object of these indictments is to pressure the defendants to provide evidence against Trump. Third is one indictment against Russian individuals who will never be brought to justice in the United States. This indictment by was largely for show.
The strategy used the special counsel, as described by Judge T.S. Ellis III, is to find crimes committed by Trump associates and to indict them in order to pressure them to cooperate. This is what Ellis said about the indictment of Trump campaign chairman Paul ManafortPaul John ManafortYellen should utilize the resources available before pushing new regulations Huawei paid Tony Podesta 0K for White House lobbying FBI agents swarm Russian oligarch's DC home MORE: “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.”
Ellis also pointed out the dangers of this tactic: “This vernacular to sing is what prosecutors use. What you have to be careful of is that they may not only sing, they may compose.” This is indeed a tactic widely employed by prosecutors, particularly in organized crime and other hierarchical cases. However, the fact that it is common does not make this tactic right. Civil libertarians have long expressed concern about indicting someone for the purpose of getting the individual to cooperate against the real target.
I have been writing about this issue for decades. In fact, I coined the term “compose” that Ellis cited in federal court. However, most fair weather civil libertarians have remained silent with regard to Mueller because his target is Trump, who they despise. The American Civil Liberties Union, which has been flush with cash since Trump was elected, has expressed little criticism of the questionable tactics used by the special counsel.
It seems rather clear that the manner by which Stone was arrested, in an early morning raid on his home in Florida publicized by the media, was intended to apply pressure on him to cooperate. Ordinarily, a white collar defendant would be allowed to surrender to authorities, unless there is fear of escape, which does not appear to be the case here, as evidenced by his low bail. Whether Stone “sings” or “composes” remains to be seen.
Stone has declared that he would never cooperate, but attorney Michael Cohen said he would take a bullet for Trump before he turned against him in an effort to get a reduced sentence. Prosecutors have many weapons at their disposal to get reluctant witnesses to cooperate, such as threatening to indict family members, as in the Michael Flynn case. Civil libertarians should be concerned about the tactics that are being used by Mueller to get witnesses to sing. All Americans nonetheless should be concerned about the “ends justify the means” path taken by the special counsel.
If Mueller ultimately comes up empty on substantive crimes relating to Russia that were committed before he was appointed, and can point only to the three categories of alleged crimes described above, then it will be difficult to declare his investigation a success, or his appointment justified by the results. Based on what we have seen, it would have been far better if a nonpartisan commission of experts had been appointed to investigate Russian involvement in the 2016 election and to make recommendations about how to prevent foreign interference in future American elections.
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.