Rosenstein's Attempts to Appease President

It is widely believed that Deputy Attorney General Rod Rosenstein has acceded to the demands of President Trump, to investigate the president's investigators, and of House Republicans, for disclosure of classified documents, in order to preserve his job and, thus, buy time for Special Counsel Robert Mueller to complete his inquiry. The expectation is that Mr. Mueller's findings will result in an indictment or report that will bring an end to the Trump presidency.

The concern is that by complying with those outrageous demands Mr. Rosenstein will have compromised the independence of the Justice Department and the sanctity of the investigative process. That outcome would damage bedrock principles of our democracy beyond repair.

This  Hobson's choice, between surrender or ouster, has been foisted upon Mr. Rosenstein by the cowardice or complicity of congressional Republicans.

Cutting Gun Crime in Chicago

The pro-gun lobby is fond of citing Chicago as a city with tough gun laws that, nevertheless, is awash in gun-related deaths. The message; tough gun control laws are ineffective. As the NYTimes reports (5/11/2018, A17) the Justice Department is using Chicago as a model in an effort to cut gun crime. A goal of that effort is to stem trafficking in firearms from other states, such as Arkansas, into Illinois. What this demonstrates is that tough gun laws in one city cannot be effective if many other cities in the country have lax rules and, thus, serve as open markets for weapons that are then funneled nation-wide into places with strict control.

The solution is obvious. Gun-related crimes can be reduced only if there is put in place a national policy that restricts the easy availability of guns everywhere in the nation.

Mueller's Questions for Trump

After reviewing the list of questions that Special Counsel Mueller purportedly wants to ask President Trump, as reported by the NYTimes, Sean Hannity castigated Mr.Mueller for delving into the thought process of the president. How, Mr. Hannity demanded to know, can one be criminally punished for what he is thinking?  Such inquiry is outrageous, said Hannity. What Mr. Hannity does not seem to realize, or chooses to ignore, is that a person's intent is almost always a required element of a crime. Thus, while President Trump may have been empowered to fire FBI Director James Comey, that action may constitute the crime of obstruction if it was corruptly motivated (i.e. intended to thwart an ongoing investigation).

One time-honored way, among several, to discern a person's intent is to ask him what he was thinking when he took the suspect action. Of course, given Mr. Trump's patent disregard for truth, Mr. Mueller would be well-advised to assess intent from what the president said to others about the reason for his action (eg, to the Russian ambassador and to Lester Holt of NBC) and by examining other relevant circumstances from which intent may be inferred.

House Committee Sham Report

Surprise, surprise! The Republican majority of the House Intelligence Committee, headed by that intrepid investigator Devon Nunes, has concluded its investigation of Russian interference in the 2016 presidential election by issuing a report which finds no evidence  that the Trump campaign colluded with Moscow.

To reach this warped result, the Republican committee members were required to ignore facts, curtail inquiry, leave key witnesses unexamined, essential documents unprocured and to leap from unwarranted assumptions to a foregone conclusion.

Presumably, this rush to rash judgment will not deter the real investigation being conducted by Special Counsel Mueller, an investigation likely to end with a very different outcome.

The Comey Memos

It is becoming more and more obvious that Republicans are being driven to distort the truth, whether to thwart the Russia investigation or to protect their own electoral prospects by providing a defense to Donald Trump. Three Republican House committee chairmen have issued a joint statement arguing that there has been no obstruction because Comey, in his memos, "never once mentioned ... whether he felt obstructed in his investigation". How Comey felt is of no legal significance. The test is what Trump intended and even if he failed to achieve his goal, of ending an FBI investigation, his direction may still constitute the crime of attempted obstruction.

In furtherance of this latest assault on truth Republicans are abetted by cable news commentator and presidential advisor Sean Hannity, who falsely claims that the Comey memos, at the time they were shared with a Comey friend, contained classified information. This inaccurate assertion is of a piece with Hannity's untruthful description of the Steele dossier as being filled with unverified lies authored by a foreign spy and based upon Russian propaganda. In fact, much of the dossier's content has been corroborated, and none of it has been disproven. It was compiled by an ex-intelligence officer of a close ally whose reliability has been established and whose sources in Russia, at great risk, provided information which was clearly not in the interests of Putin. To suggest that Comey misused the dossier further demonstrates the groundless nature of the attacks upon him.

The Charges Against McCabe

The Inspector-General of the FBI has made a criminal referral to the Justice Department apparently recommending that criminal charges be brought against former Acting Director of the FBI Andrew McCabe for making unauthorized disclosures to the press and then lying about it to the I.G. McCabe's alleged misconduct has been seized upon by the likes of Devon Nunes, Chair of the House Intelligence Committee and Sean Hannity of Fox News, both vociferous defenders of President Trump, as proof that the FBI's Russia investigation is a witch hunt and that McCabe is part of a cabal attempting to bring down the Trump presidency.

Assuming, for the sake of argument, that the allegations of McCabe's misdeeds are true, what each of Mr. Nunes and Mr. Hannity should be required to answer is, who was hurt by McCabe's alleged transgressions, Hillary Clinton or Donald Trump? The incontrovertible fact is that the information allegedly leaked by McCabe was damaging to Ms. Clinton and, thus, helpful to Mr. Trump. How in the world can this set of facts be spun to support the notion that the FBI is out to get Trump?

Alan Dershowitz Reborn

Alan Dershowitz was long regarded as a champion of civil liberties (he served on the board of the ACLU), as an outspoken advocate for victims of an oppressive criminal justice system and as a distinguished professor of law at Harvard University. While, at times, he espoused controversial, even outrageous, legal positions and his confrontational persona offended some, his sincerity and commitment to a just and evenhanded legal system was seldom questioned.

In recent days, however, a new model of Prof. Dershowitz has gradually evolved. This altered version began with small steps that seemed in keeping with his concern for rigorous implementation of constitutional protections even as his pronouncements, seemingly by coincidence, aided a beleaguered President Trump. Thus, Dershowitz authored an op-ed piece for this newspaper which cautioned against criminalizing political conduct and argued that the president could not be guilty of obstruction when he directed FBI Director Comey to discontinue the Flynn investigation. The learned professor's argument seems to have overlooked the recognized legal principle that actions motivated by an improper purpose, even though within the president's executive powers, may still constitute obstruction of justice.

In the service of promoting his new book,"Trumped Up", Dershowitz began to appear on the Fox cable network, which apparently welcomed the opportunity to enlist an icon of the Left in support of pro-Trump arguments. The more often he appears, particularly on the program hosted by Sean Hannity, the stronger and more strident the professor's pro Trump rhetoric becomes (though he appears to adjust his take and tone when on non-conservative channels). Unsurprisingly, President Trump, who reportedly gets most of his information by watching Fox News, has taken note of this unexpected source of legal support and Dershowitz was invited to dine at the White House.

Now Dershowitz appears regularly on the Hannity show and makes full-throated attacks upon President Trump's nemesis Special Counsel Robert Mueller and Deputy Attorney-General Rosenstein. While disclaiming any role as Trump's attorney he, nevertheless, offers advice apparently intended to guide the President's defense. Thus, he recently suggested that Trump should decline to be interviewed by Mueller and should invoke not the Fifth Amendment's protection against self-incrimination (which would be politically disastrous) but rather the Sixth Amendment's right to counsel. The professor's perplexing argument is that Trump could proclaim his desire to testify but assert that he is foreclosed from doing so by his attorneys' direction to abstain. Being bound by his attorneys' instructions Trump is somehow deprived of his right to counsel. This argument is not only legally baseless and illogical, it contravenes the well-established principle (which surely is known to the former Harvard professor) that the client has the ultimate and absolute right to decide whether to testify on his own behalf.

It is difficult to fathom why Professor Dershowitz has executed such a radical about-face at this stage of his long legal career. One can only speculate that he may be driven by a need for renewed public attention, an appetite whetted by the new-found adulation heaped by Fox News, a desire to promote the sale of his book or an identification with the Middle East policy of the Trump administration. In any event, for better or for worse, the new Alan Dershowitz has regained, for the moment, his place on the national stage.