Alan Dershowitz: If the Special Counsel Decides Not to Indict, 'Then Shut Up'

Susan Jones | July 24, 2019 | 6:26am EDT
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Robert Mueller then the FBI Director, testifies before the US Senate Judiciary Committee in 2013. (Photo by Saul Loeb/AFP/Getty Images)

( - Today's back-to-back Mueller hearings, this morning in the House Judiciary Committee and this afternoon in the House intelligence committee, create a "terrible precedent," former Harvard law professor and current Fox News contributor Alan Dershowitz said on Tuesday.

He said the entire controversy shows why special counsels should never be appointed again.

"This creates such a terrible precedent," Dershowitz said:

What it means is that for every American who is subject to a criminal investigation and the prosecutor decides not to indict, then they can be called in front of Congress and say, 'Well, you didn't indict him but tell us how bad he really is. Tell us how many terrible things he did. Tell us all the things that you were told that maybe you didn't believe.'

It really undercuts the American system of justice, the presumption of innocence, and our long, long tradition that prosecutors simply decide whether to indict or not. If they decide not to indict, they then shut up.

Remember, prosecutors are not asked to find whether somebody's guilty or innocent. That's up to the judge and the jury. All prosecutors are supposed to find is whether there is probable cause to go further and have a trial. And it's all getting messed up by the Special Counsel concept.

I hope we've heard the last of Special Counsel. I hope we never see them again in the American system.

Volume I of the Mueller report says investigators "did not establish that the Trump Campaign coordinated with the Russian government in its election interference activities."

Volume II, on obstruction of justice, is conclusively inconclusive. Here the Mueller report presents four considerations:

First, the report notes that a "traditional prosecution" decision involves yes or no -- indict or don't indict -- "but we determined not to make a traditional prosecutorial judgment."

The report points to the Justice Department's Office of Legal Counsel (OLC), which issued an opinion saying that a sitting president cannot be indicted. The special counsel "accepted" that OLC opinion.

"We recognized that a federal criminal accusation against a sitting President would place burdens on the President's capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct." [Those "constitutional processes" include impeachment.]

Second, even if a sitting president cannot be indicted, he can be criminally investigated, the Mueller report says.

"The OLC opinion also recognizes that a President does not have immunity after he leaves office. And if individuals other than the President committed an obstruction offense, they may be prosecuted at this time. Given those considerations, the facts known to us, and the strong public interest in safeguarding the integrity of the criminal justice system, we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available."

Third, the report says the special counsel's team decided not to "apply the approach that could potentially result in a judgement that the president committed crimes."

"Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor's judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing..."

Fourth, the report says, "if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President's actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him."

Many congressional Democrats have seized on the "does not exonerate him" phrase as a cue to impeach.

President Trump, in his Tuesday tweets, made several references to the "rigged Witch Hunt."

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