Trump, the lawyer you want already defends you on TV

Trump, the lawyer you want already defends you on TV
© Getty

Republican President Donald J. Trump epitomizes what the historian Richard Hofstadter called the anti-intellectual tradition in American politics. Liberal attorney Alan Dershowitz is a card-carrying Ivy League intellectual (and a writer for The Hill). Neither likely ever expected to need the other. But stuff happens. Trump is being pursued by an increasingly aggressive special prosecutor Robert MuellerRobert (Bob) MuellerCNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump CNN anchor rips Trump over Stone while evoking Clinton-Lynch tarmac meeting The Hill's 12:30 Report: New Hampshire fallout MORE. He knows his legal team would benefit by adding a thinking man’s lawyer.    

But TV consumer Trump, like America generally, probably best remembers the brilliant Harvard Law professor as one of OJ Simpson’s defenders. This public relations taint surely gives the image-conscious president pause. Trump v. U.S. at the Supreme Court would dominate the media unlike any other case, both here and abroad, and it could help Dershowitz, if he were involved, be remembered as a great appellate lawyer. In addition, Dershowitz’s recent commentaries indicate his willingness to argue the president’s side.

Much of the media have overlooked the looming constitutional issue framed by Mueller’s three end-game legal options: (1) Trump gets a legal pass; (2) Trump gets indicted for one or more alleged crimes; or (3) a grand jury issues a non-indictment indictment, the “unindicted co-conspirator” charge used by the Watergate prosecutors to brand Richard Nixon a criminal but without offering to prove it.  

As the famous adage advises, any competent prosecutor can get a grand jury to indict a ham sandwich. The evidentiary bar is low; indeed, Mueller can use material not admissible in the actual trial. If Mueller’s team believes Trump is dirty, Option #1 is unlikely. It gives Trump a big win, and deals a lethal blow to any impeachment process.

Option #2 talk dominates the anti-Trump commentary. But in 2000, lawyers for Democratic President Bill ClintonWilliam (Bill) Jefferson ClintonA political hero is born in Ohio: America needs more Tyler Ferhmans Presidents, crises and revelations Biden needs to bring religious Americans into the Democratic fold MORE’s attorney general and staff prepared a legal memorandum on special prosecutor power. They concludeda sitting President is immune from indictment as well as from further criminal process” due to the debilitating effect of this prosecutorial action on the executive branch's ability to perform its unique constitutional duties. Democrats in Congress agreed. Does Mueller want to now explain why the liberals were conveniently wrong just in time to indict a Republican president?  He is presumably loath to wade into this double-standard political and constitutional thicket.

Mueller knows Trump’s challenge to an indictment likely will reach the Supreme Court. If Mueller loses — a 9-0 vote to uphold the Clinton memo is possible — then his investigation is fatally discredited, and any impeachment process would be as well. If he wins, a 5-4 or 6-3 is likely with Democratic appointed Justices providing the deciding votes. The dissent will be blistering.  America will be further divided and the Court’s credibility further tarnished.

This leaves Option #3 — a way out. The special prosecutor pursues the president’s associates and family in an effort to force a resignation. Assuming this fails, Mueller dusts off the Watergate precedent and names Trump as an “unindicted co-conspirator.”  Mueller then cites the Constitution for not bringing formal charges.

However, it remains an open question whether the Constitution permits a presidential non-indictment indictment. Richard Nixon had already resigned before the sealed grand jury charge became public. If the Constitution says formally indicting a president isn’t in the national interest, then why allow a prosecutor to create essentially the same debilitating criminal by indirection?   

ENTER STAGE LEFT: Alan Dershowitz

This three-sided chess board folds into a constitutional crisis should Mueller refuse to give Trump a pass. The nuclear Option #2 might be chosen if Mueller believes the risk is worth the reward. But he knows Trump isn’t going to jail. Why gamble everything for a trophy indictment?

There are many good constitutional lawyers for Trump to hire. But in today’s politics, where identity too often is destiny, Trump will benefit from having a liberal, Ivy League Democratic policy wonk make his constitutional arguments.   

Let’s be honest: Trying to negate a national election is the ultimate political act no matter the legalistic clothing. It defies logic for the drafters to have given a sole unelected prosecutor and grand jurors from one jurisdiction such unchecked power.  

Mueller’s integrity is not the issue. The law is. Option #3 is a devilish legal play. Trump is put under a criminal cloud while making it impossible for Congress not to seriously consider impeachment. But Trump’s lawyers must use guile and gall to stop Mueller from opening that door for another reason: Since their client doesn’t face prosecution, could he sue to have the grand jury action overturned?          

An extraordinary constitutional conundrum increasingly looms. The case for hiring an extraordinary constitutional scholar seems self-evident.     

Paul Goldman, an attorney, is former chair of the Democratic Party of Virginia. Mark J. Rozell, author of the book "Executive Privilege", is dean of the Schar School of Policy and Government at George Mason University.