Experts disagree on Mueller strategy after first charges revealed
Indictments of two former Trump campaign officials for alleged financial crimes unrelated to their campaign work illustrate the widening scope of Justice Department special counsel Robert Mueller’s investigation of Russian interference in the 2016 election, but famed defense attorney Alan Dershowitz said the message sent by the charges is troubling, yet predictable when such a probe is unleashed on an administration.
“Whenever you have somebody looking to knock over dominos, there are going to be some dominos,” said Dershowitz, a former Harvard law professor and onetime O.J. Simpson attorney. “And that’s why the people who are most at risk are the people closest to the president because they’re going to go after every one of them.”
On Monday, Mueller’s office announced the indictments of former campaign chairman Paul Manafort and his deputy Richard Gates on charges including conspiracy, money laundering, and making false statements. It also revealed that Trump foreign policy adviser George Papadopoulos pleaded guilty to lying to FBI agents about his contacts with Russian nationals.
The allegations against Manafort and Gates are based on their work lobbying for the Ukrainian government and politicians over the last decade. A 31-page indictment makes no mention of their work for Trump, but they could face over a decade in prison if convicted.
According to Dershowitz, author of “Trumped Up: How the Criminalization of Political Differences Endangers American Politics,” Mueller and his team are using the aggressive tactics they apply in criminal cases to squeeze close associates of President Trump and turn them against him. While technically ethical and routine, he said such maneuvers raise serious civil liberties concerns.
“That’s the way prosecutors go after mafiosos, terrorists, corporate criminals,” he said. “It’s not the usual way to go after people who are being suspected of political crimes, which is what this is about.”
He called that strategy “questionable” and warned that it incentivizes witnesses to incriminate innocent people.
“Not only can you get cooperating witnesses who have a sentence hanging over their head, not only can you get them to sing, sometimes they compose,” he said. “They make up stories, they exaggerate.”
The order appointing Mueller stated his mandate as investigating “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.”
Although Dershowitz supported Hillary Clinton and considers himself a Democrat, he has emerged as one of Trump’s most vocal legal defenders. In particular, he has pushed back hard against suggestions that Trump’s firing of FBI Director James Comey constituted obstruction of justice.
“It’s total nonsense,” he said of the allegation. “You can’t obstruct justice if you’re the president of the United States by engaging in constitutionally protected actions.”
He has taken some heat from the left for his strident arguments on the president’s behalf, but Dershowitz insists he is just trying to be consistent with his principles.
“Civil libertarians are very upset about this when the target is somebody they like, and when the target is somebody they don’t like, somehow they forget about their civil libertarian instincts and go with hey, lock him up, lock her up,” he said.
He is speaking out now out of concern for the future of the country because he fears Trump’s enemies are trying to weaponize Mueller’s investigation to overturn a legitimate, if unfortunate, election outcome.
“I think it endangers democracy,” Dershowitz said. “I think it threatens to give prosecutors the power to take away electoral results. Look, I wish Hillary Clinton had been elected, I wish we didn’t have an electoral college which gives victories to people who lost the popular vote, but the election is the election.”
Although some media reports have indicated Trump is “seething” with anger at Mueller over the indictments, the president insisted in a brief phone call with New York Times reporters Wednesday that he is not mad at anyone.
“Even if you look at that,” he said of the indictment, “there’s not even a mention of Trump in there…. It has nothing to do with us.”
A new poll suggests the public is generally supportive of the direction the probe is going. An ABC News/Washington Post survey released Thursday found that 58 percent of Americans approve of Mueller’s handling of the investigation, although only 38 percent of Republicans do.
Americans also broadly approve of the charges against Manafort and Gates, and 53 percent believe the cases filed so far “represent broader wrongdoing” by the campaign. Nearly half of respondents, 49 percent, said it is likely Trump has committed a crime, although only 19 percent said there is solid evidence of that.
Some Republicans share Dershowitz’s belief that the investigation is veering off of its intended course, although two interviewed on Capitol Hill Wednesday were not prepared to condemn Mueller.
“I think the special counsel ought to go after wrongdoing, like his mandate showed, having to do with the election,” said Sen. Richard Shelby, R-Ala. “If the Russians interfered with the election, if it were Republicans aiding and abetting, or if it was Democrats, he ought to point it out. if there’s not any, he ought to move on, but it’s too early to move on.”
Rep. Darin LaHood, R-Ill., a former federal prosecutor, said the investigation should follow the evidence, but he emphasized the allegations against Manafort and Gates do not implicate the president or his campaign.
“These are serious charges that should go through the court process but I have not seen anything with that indictment of Manafort or his partner Gates that has any connection or any collusion to the Trump administration,” he said. “These were things that happened well before Manafort came on as campaign manager, but you know, we have to see where the process goes.”
However, Dershowitz insisted the special counsel is not merely following the evidence in the election investigation.
“They just happened to find that these guys allegedly cheated on their taxes and maybe money laundered,” he said. “That gave them the leverage. It would be comparable to if they caught them jaywalking or double parking, except the penalties are much harsher.”
Other legal experts say Mueller is doing exactly what he was appointed to do.
“It’s encompassed within the mandate he was given,” said Michael Gerhardt, a constitutional law professor at the University of North Carolina. “He was given broad jurisdiction and it wasn’t just looking at what the campaign specifically was doing.”
According to Gerhardt, it would be “fairly reckless” for a prosecutor to file indictments for the sole purpose of applying pressure, and that does not appear to be what Mueller has done with Manafort and Gates.
“I’m sure if this were a Democratic White House or Democratic official being indicted, we’d hear about how awfully serious the charges are, and that’s because the charges are serious,” he said.
Katy Harriger, author of “The Special Prosecutor in American Politics,” observed that Manafort’s work with Ukrainian interests was already under FBI scrutiny when he left Trump’s campaign and she expects he would have faced indictment even without the special counsel’s involvement.
“Prosecutors occasionally ‘pressure’ people that they want to cooperate with smaller charges than this, not massive money laundering, tax evasion, and conspiracy to defraud charges,” she said.
The guilty plea by George Papadopoulos, who was arrested in July and pleaded guilty nearly a month before the charges were made public, is likely even more alarming for Trump associates. Documents unsealed Monday specifically note that he is cooperating with investigators and answering questions.
“For Mueller’s team to have been able to secure a guilty plea and keep it relatively secret for such a long time, clearly it’s going to raise a concern within the White House about who else may be in a similar circumstance,” Gerhardt said. “What we don’t know can haunt us and bother us.”
While Dershowitz complained that Mueller is zeroing in on outside activities and peripheral figures, Harriger said that is often what occurs in special counsel investigations and prosecutors will not ignore evidence of wrongdoing once they uncover it.
It is possible to hand a tangential case off to the Justice Department, but she noted that the special prosecutor who investigated an aide to President Jimmy Carter for drug use found proof that another official was using cocaine. They passed that off to the DOJ, which chose not to investigate, leading to another special prosecutor being appointed.
In comparison, Kenneth Starr’s investigation of President Bill Clinton over the Whitewater real estate deal ended up roping in lots of other matters, including the Monica Lewinsky allegations that ultimately led to Clinton’s impeachment trial.
“He could have said, no, I was appointed to investigate Whitewater and that is all I am doing,” Harriger said. “But as we know, that is not what happened.”
That is exactly why Dershowitz is so troubled by the special prosecutor concept.
“They are told that there’s a man with a target on his back, the president of the United States, and they’ll find something,” he said. “They found it on Bill Clinton, they’ll find something on somebody close to Donald Trump.”
Despite the frequent media debate over “collusion,” investigators will need to find more than evidence of communications or cooperation with Russian operatives to prove illegal activity.
“We shouldn’t confuse what we don’t like or what we find as political sins with crimes,” Dershowitz said. “For something to be a crime, it has to be a specific violation of a clear federal statute and I just don’t see anything.”
Gerhardt agreed that simply trying to coordinate with foreign operatives on election strategy is not inherently criminal, but he added that is why prosecutors are likely not just looking for evidence of collusion.
“One reason why Trump and others close to the White House use the word collusion is it’s just a made-up word and it doesn’t appear in federal statutes,” he said.
Mueller will instead be looking for evidence of conspiracy, bribery, obstruction, or other crimes clearly spelled out in statutes. Dershowitz will be watching that effort closely and will continue to criticize it when he feels it is warranted.
“I’ve expressed concern about this method of law enforcement for more than 50 years,” he said. “Just because I’m a liberal Democrat who voted for Hillary Clinton doesn’t mean I’m not going to call it out when it’s used against somebody I voted against.”