By Alan M. Dershowitz
President Trump is right in saying that a special counsel should never have been appointed to investigate the so-called Russian connection. There was no evidence of any crime committed by the Trump administration. But there was plenty of evidence that Russian operatives had tried to interfere with the 2016 presidential election, and perhaps other elections, in the hope of destabilizing democracy. Yet, appointing a special counsel to look for crimes, behind the closed doors of a grand jury, was precisely the wrong way to address this ongoing challenge to our democracy.
The right way would have been (and still is) to appoint a nonpartisan investigative commission, such as the one appointed following the terrorist attacks of 9/11, to conduct a broad and open investigation of the Russian involvement in our elections. This is what other democracies, such as Great Britain and Israel, do in response to systemic problems. The virtue of such a commission is precisely the nonpartisan credibility of its objective experts, who have no political stake in the outcome.Such a commission could have informed the American public of what Russia did and how to prevent it from doing it again. It would not seek partisan benefit from its findings, the way congressional committees invariably do. Nor would it be searching for crimes in an effort to criminalize political sins, the way special counsels do to justify their existence and budget. Its only job would be to gather information and make recommendations.
The vice of a special counsel is that he is supposed to find crimes, and if he comes up empty-handed, after spending lots of taxpayer money, then he is deemed a failure. If he can’t charge the designated target — in this case, the president — he must at least charge some of those close to the target, even if it is for crimes unrelated to the special counsel’s core mandate. By indicting these low-hanging fruits, he shows that he is trying. Maybe those lesser defendants will flip and sing against higher-ups, but the problem is that the pressure to sing may cause certain defendants to “compose,” meaning make up or enhance evidence in order to get a better deal for themselves.
In this case, the appointment of a special counsel has done more harm than good. It has politicized our justice system beyond repair. The FBI deputy director has been fired for leaking and lying. His testimony appears to be in conflict with that of the former FBI director as to whether the leaks were authorized. Messages by high-ranking FBI agents suggest strong bias against Trump. A tweet by the former CIA director reveals equally strong negative views of the president. Perhaps these revelations prove nothing more than that law enforcement and national security officials are human and hold political views like everyone else.
But these views are not supposed to influence their decisions. In our age of hyperpartisanship, the public has understandably lost confidence in the ability and willingness of our leaders to separate their political views from their law enforcement decisions. This is not all attributable to the appointment of the special counsel, but the criminalization of political differences on both sides of the aisle has certainly contributed to the atmosphere of distrust in our justice system.
The public has lost faith in the leadership of the Justice Department and the FBI. They don’t trust congressional investigative committees. They don’t know whom to believe when they hear conflicting accounts. There are leaks galore followed by denials of leaks. It’s a total mess. And what do we have to show for it? Just a handful of low-level indictments based largely on alleged crimes that are either unrelated or only marginally related to Russia’s attempt to influence our presidential election in 2016.
It’s not too late to try to repair some of the damage done. Let Congress now appoint a nonpartisan commission to conduct a transparent investigation of Russia’s efforts to influence our elections. Let the special counsel suspend his investigation until the nonpartisan commission issues its report. If the report identifies crimes and criminals, there will be time enough to indict and prosecute. Right now, we need the nonpartisan truth, because we aren’t getting it from the special counsel.