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May 28, 2017 8:32 pm

Alan Dershowitz: Mueller’s Roving Commission to Investigate ‘Evil’ Is a Danger to Civil Liberties

avatar by Alan Dershowitz


Robert Mueller. Photo: Wikimedia Commons.

Special Counsel Robert Mueller was commissioned to investigate not only crime, but also the entire Russian “matter.”  That is an ominous development that endangers the civil liberties of all Americans.

Federal prosecutors generally begin by identifying specific crimes that may have been committed – in this case, violation of federal statutes. But no one has yet identified the specific statute or statutes that constrain Mueller’s investigation of the Russian matter.  It is not a violation of any federal law for a campaign to have collaborated with a foreign government to help elect their candidate. Perhaps it should be, but it is not.  Even if there was evidence that the Trump campaign collaborated with Russian officials toward this end – and I am not aware of any — that would be a terrible political sin, but not a crime. Since the witchcraft trials in Salem, prosecutors have not been authorized to investigate sin. That is left to pastors and pundits who only have the power of persuasion. Federal prosecutors have the power of the secret grand jury, the subpoena, the selective leak, and ultimately indictment and prosecution.

That is why prosecutors must be constrained by law as to what they are authorized to investigate. Federal prosecutors are not given roving commissions to investigate “evil” or “wrongdoing”– only violations of federal criminal statutes.

Since I began raising this issue, pundits and friends have been suggesting federal statutes that might have been violated. They include treason, obstruction of justice, attempted obstruction of justice, accessory after the fact to hacking and other elastic statutes capable of being stretched to fit the conduct of any villain de jure.

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But this untrammeled approach to criminal justice is fraught with danger of overreaching and selective prosecution.

The particular statutes most often cited by defenders of the investigation are among the most dangerous on the books, precisely because they are so broad, vague, open ended and capable of being stretched to fit nearly any targeted individual. Today it’s Donald trump. Yesterday it was Hillary Clinton. Tomorrow it could be you!

One does not have to go back to the Soviet Union and Lavrentiy Beria’s infamous boast to Stalin “Show me the man and I will show you the crime,” in order to be concerned about the expansion of elastic criminal statutes. There are enough examples of abuse in our own history.

From McCarthyism to the failed prosecutions of Senator Ted Stevens, Congressman Thomas DeLay, Governor Rick Perry and others we have seen vague criminal statutes stretched in an effort to criminalize political differences. Those Trump supporters who shouted “lock her up” with regard to Hillary Clinton were doing the same thing. Republicans use this tactic against Democrats and vice versa. We all lose when prosecutors abuse their enormous powers.

In the current case, the issues are more complex because there is a strong argument that collaborating with an enemy government like Russia to influence an American election SHOULD be a crime. Perhaps that is correct, though the task of drafting such a statute would be daunting. But under current statutes it is not a crime. This is an appropriate concern of Congress, but NOT of a prosecutor whose mandate should not extent beyond existing criminal statutes.

It would be appropriate for Congress to have future-looking hearings designed to determine whether new laws are needed to correct existing abuses. These hearings would be accessible to the public and witnesses would have the right to counsel. After conducting such hearings Congress could then decide whether new laws are needed, especially in an age where hacking private emails and selectively releasing them has become a political tactic. The act of hacking should be a crime, but if publishing the hacked material were to be criminalized, First Amendment issues might arise. Striking the appropriate balance between discouraging hacking and the public’s right know is appropriately left to Congress and ultimately to the courts, but certainly not to prosecutors.

Another appropriate vehicle for investigating what happened during the most recent presidential election would be a congressionally mandated independent non-partisan commission of the kind that looked into the causes of 9/11 and the need for new laws and procedures. Such a commission would hear evidence in public, unless it were classified, and would provide safeguards to witnesses not available in secret grand juries.

All civil libertarians, whether Democrat or Republican, should be concerned about the fishing net given to Special Counsel Robert Mueller. A criminal investigation should not be a fishing expedition or a search for criminal statutes that can be stretched to fit particular targets. Partisan politics should not blind us to the dangers of prosecutors with roving commissions to investigate “matters” rather than specific crimes.

A version of this article was originally published by The Hill. 

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