Just as the first casualty of war is truth, so too, the first casualty of hyperpartisan politics is civil liberties. Many traditional civil libertarians have allowed their strong anti-Trump sentiments to erase their long-standing commitment to neutral civil liberties. They are so desperate to get President TrumpDonald TrumpFormer Sen. Heller to run for Nevada governor Overnight Defense & National Security — Milley becomes lightning rod Joint Chiefs Chairman Milley becomes lightning rod on right MORE that they are prepared to compromise the most basic due process rights. They forget the lesson of history that such compromises made against one’s enemies are often used as precedents against one’s friends.
In the play and movie, “A Man for all Seasons,” Robert Bolt wrote, “When the last law was down, and the devil turned round on you, where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast — man’s laws, not God’s — and if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the devil benefit of law, for my own safety’s sake.”
Mueller was an assistant U.S. attorney in Boston, the head of its criminal division, then head of the criminal division at the main Justice Department and the FBI director during the most scandalous miscarriage of justice in the FBI’s modern history. Four people were framed by the FBI in order to protect murderous gangsters working as FBI informers. An FBI agent, who is now in prison, was tipping off crime boss Whitey Bulger as to who might testify against him so that those individuals could be killed.
Those tips later enabled Bulger to escape and remain on the lam for 16 years. What responsibility, if any, did Mueller — who was in key positions of authority and capable of preventing these horrible miscarriages — have in this sordid incident? No less a legal figure than Judge Mark Wolf, a former prosecutor who conducted extensive hearings about this entire mess, made the following findings.
“The files relating to the Wheeler murder, and the FBI’s handling of them, exemplify recurring irregularities with regard to the preparation, maintenance, and production in this case of documents damaging to [Stephen] Flemmi and Bulger. First, there appears to be a pattern of false statements placed in Flemmi’s informant file to divert attention from his possible crimes and/or FBI misconduct…”
“Second, contrary to the FBI’s usual policy and practice, all but one of the reports containing … allegations against Bulger and Flemmi were not indexed and placed in an investigative file referencing their names. Thus, those documents were not discoverable by a standard search of the FBI’s indices … Third, when documents damaging to the FBI were found by the Bureau, they were in some instances not produced to the defendants or the court at the time required by the court’s orders…”
Judge Wolf also referenced what Mueller may have known of two murders Bulger committed while acting as an FBI informer, writing, “The source also claimed to have information that Bulger and Pat Nee had murdered Halloran and Bucky Barrett. The source subsequently said that there was an eyewitness to the Halloran shooting who might come forward, and elaborated, ‘There is a person named John, who claims he talked to Whitey and Nee as they sat in the car waiting for Halloran on Northern Avenue. He sits in a bar and talks about it. He saw the whole operation.’”
He continued, “The source added that the person providing the information to the source ‘will be willing to talk to you soon.’ On Feb. 3, 1988, Weld directed Keeney to have the information that he had received sent to the United States attorney in Boston, Frank McNamara, and to the strike force chief, Jeremiah O’Sullivan. Weld added, ‘Both O'Sullivan and Bob Mueller are well aware of the history, and the information sounds good.’” Mueller at this time was assistant U.S. attorney in Boston.
It is widely believed among Boston law enforcement observers that the FBI was not really looking for Bulger during the years that Mueller was its director and that the FBI was fearful about what Bulger would disclose about his relationship with agents over the years. It took a U.S. Marshals officer to find Bulger, who was hiding in plain view in California.
Much of this and other details surrounding the scandal have been reported by Fox News and in other media accounts. Recently, Nancy Gertner, a former federal judge and civil libertarian, rushed to Mueller’s defense in a New York Times opinion column, declaring “without equivocation” that Mueller had “no involvement” in the massive miscarriage of justice. Her evidence is the lack of evidence in the files.
Yet, no civil libertarian should place such great trust in government files, especially in light of Judge Wolf’s findings. They should join my call for an objective investigation by the Justice Department’s inspector general before they assure the public “without equivocation” that Mueller had absolutely “no involvement.”
But the “get Trump at any cost” partisans have rejected my call for an investigation, out of fear that it may turn up information that might tarnish the image of the special counsel who is investigating Trump. Instead they criticize those of us who point out that Mueller was “at the center” of the Justice Department and FBI when this miscarriage of justice occurred.
All civil libertarians should want the truth about this sordid episode — and Mueller’s possible role — regardless of its impact, if any, on the Trump investigation. Mueller, too, should welcome an objective investigation, which might eliminate any question about his role in this travesty. Yet, as I have written previously, for too many former civil libertarians the hope of getting Trump trumps civil liberties.
It is ironic to see many right-wingers criticizing overreach by law enforcement, while many left-wingers now defend such overreaching. Hypocrisy and selective outrage abounds, as neutral principles take a back seat. Conservatives used to say “a conservative is a liberal who has been mugged.” I would respond that “a liberal is a conservative who is being audited or whose kid was busted for pot.”
Today, a civil libertarian is a conservative whose candidate is being investigated, while a “law and order” type is a liberal who wants to see Trump charged or impeached. I am a liberal who voted against Trump but who insists that his civil liberties must be respected, for all of our sakes.
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 BDS: Why Singling Out Israel for Boycott is Anti-Semitic and Anti-Peace.” You can follow him on Twitter @AlanDersh and on Facebook @AlanMDershowitz.