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Alan Dershowitz: Who won, who lost in Mueller report
Now that the Mueller report has been released, the spin game begins. Each side has been given sufficient material in the report to claim victory and to attack the other side.
President Trump has said this was a good day. And it was, from a legal point of view. The report concluded that there is absolutely no evidence that anyone in his campaign (or any other American) illegally conspired with Russian operatives who were determined to try to influence the outcome of the election. That is the good news for Trump. It vindicates him legally on his claim from Day One that there was no collusion.
The bad news is that the report contains information - much of which has been disputed by the Trump legal team - of non-criminal, but not very nice, behavior on the part of the president and some of his associates. Such conduct includes repeated misstatements about who knew what regarding meetings and other contacts.
On balance, however, President Trump comes out way ahead on the Russia collusion issue. Putting aside legalisms, it really appears as if there was no actual collusion.
On the obstruction issue, the bad news for President Trump may exceed the good news. Although the report "does not conclude that the President committed a crime," as it states, it also refuses to "exonerate him." Already, Democrats are arguing that Congress can revisit the obstruction evidence and come to its own conclusions about whether President Trump's conduct constituted obstruction of justice. The catalogue of ten instances of possible obstruction provide a roadmap for Congress to further investigate, even if in the end it decides not to impeach.
Attorney General William Barr and special counsel Robert Muller apparently have a fundamental disagreement over whether a president can be charged with obstruction of justice if he merely engaged in an act authorized by the Constitution but with an improper motive.
Barr takes the view - a view that I have argued for many months - that the act requirement of a crime (actus reus) cannot be satisfied by a constitutionally authorized action of the president, such as firing FBI Director James Comey. Mueller takes the view that a constitutionally authorized act can be turned into a crime if it is improperly motivated.
Mueller's view is extreme and dangerous to civil liberties because it creates pure thought crimes. According to Mueller, the corrupt motive is the crime because surely the constitutionally authorized act cannot be criminal. The implications of this view for all Americans are frightening. They are especially frightening if applied to a president. Do we really want prosecutors or members of Congress to probe the motivations of presidents when they take constitutionally authorized actions?
Presidents, like the rest of us, have multiple motivations in virtually everything they do. Some are altruistic, others self-serving. Some are patriotic, some are partisan. A president may be motivated by revenge, friendship, family loyalty or countless other factors. We should judge presidents by what they do, not by why they do it.
In any event, neither Mueller nor Barr could find sufficient evidence of criminal motive to conclude that President Trump committed a crime. That was the right decision, even if Mueller made it for the wrong reason.
The Democratic leadership has already said that it makes little sense to try to impeach the president. Instead, they will try to hinder him by 1,000 cuts - subpoenas, hearings and other partisan maneuvers. They will use the critical contents of the Mueller report to further their partisan aims. That is one good reason, among many, why prosecutors should not issue public reports containing negative information about subjects of their investigations.
Another good reason is that prosecutorial reports are, by their nature, one-sided. Prosecutors do not look for exculpatory evidence, as Mueller has admitted in this report. That is why it is important to wait for the Trump legal team's rebuttal to the Mueller report before coming to a final conclusion.
So, in the end, both sides won something and lost something. On balance, Trump won more.
The real question is, did the American people win? On that, I still believe, as I did even before Mueller was appointed, that a far better approach would have been to appoint a nonpartisan commission of experts to look into Russian efforts to influence our election and to seek ways of preventing such intrusions in the future.
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.