Five Questions for Alan Dershowitz on the Criminalization of Political Differences

Last week on this site, former White House Counsel Bob Bauer penned a particularly thoughtful response to an op-ed in the New York Times by Alan Dershowitz. Bauer’s piece draws on his extensive knowledge not just of L’Affaire Russe but of the fabric of post-Watergate election law and regulation to argue against Dershowitz’s view that the Mueller investigation represents the “criminalization of political differences.” With characteristic understatement, Bauer writes that “The example [Dershowitz] selects—the travails of Trump and his 2016 campaign—seems a questionable choice for his purposes.”

I have a few words to add on this subject. Dershowitz has been very public with this argument, which he has advanced in a number of different fora. Only this morning, he was on Fox & Friends making this argument:

And his argument has caught the President’s fancy:

So his argument is worth confronting directly. By way of doing so, I have a number of questions for him, which I invite him to address on Lawfare.

Dershowitz’s argument, to the extent I understand it, is broader than simply that the president cannot obstruct justice by exercising his constitutional authorities. It is that while “Government corruption should be prosecuted, Congress has a role to play in overseeing the executive branch, and our intelligence agencies are right to raise concerns about foreign interference in our elections,” none of these entities should play these roles in the context of L’Affaire Russe. It is not entirely clear whether he means this in general, or merely with respect to the President himself, but he also seems to oppose the investigations of Hillary Clinton, Robert Menendez, and others who are not presidents. So I think it’s fair to say that he is not simply arguing against the availability to Mueller of the obstruction statutes.

As he explains it, his concern is “the use of politically neutral but overly malleable laws on obstruction of justice, corruption and conspiracy that can be used to prosecute the ethically questionable, but not necessarily criminal, activities of political rivals.” Specifically, Dershowitz warns that “elastic criminal laws should not be stretched to cover Mr. Trump’s exercise of his constitutionally authorized power” to manage the executive branch:

When the president asked the director of the F.B.I. to drop its investigation into Michael Flynn, the former national security adviser, or fired James Comey from the F.B.I., or provided classified information to the Russians, he was acting within his constitutional powers. Those actions may deserve opprobrium, but they should not be deemed criminal. The proper place to litigate the wisdom of such actions should be at the ballot box, not in the jury box.

Even if it were to turn out that the Trump campaign collaborated, colluded or cooperated with Russian agents, that alone would not be a crime, unless the campaign asked them or helped them to commit criminal acts such as hacking.

The fundamental problem with Dershowitz’s confident thesis is that he is assuming the outcome of the Mueller investigation and then using that assumed outcome to discredit the enterprise. How does he know that the results of the investigation won’t show criminality without taking advantage of elasticity in any law?

More broadly, if we assume, as he allows, that “Government corruption should be prosecuted,” it follows that we need to investigate allegations of government corruption before we can determine that proceeding against it, even on the basis of malleable laws, would be the criminalization of politics—rather than, say, the prosecution of criminal activity in the course of politics.

One word that does not appear in Dershowitz’s article is “predication.” But the FBI actually does not open investigations on the basis of the desire to harass a politician (at least, it doesn’t do so without violating its rules). It opens investigations on the basis of identifiable factual predicates—either a criminal predicate if there’s suspected criminal conduct, or a national security predicate in counterintelligence matters. If there’s no predication, there is no investigation. Here are the possible bases for what the Bureau calls a “predicated investigation,” according to Justice Department policy (see p. 20):

1. An activity constituting a federal crime or a threat to the national security has or may have occurred, is or may be occurring, or will or may occur and the investigation may obtain information relating to the activity or the involvement or role of an individual, group, or organization in such activity.
2. An individual, group, organization, entity, information, property, or activity is or may be a target of attack, victimization, acquisition, infiltration, or recruitment in connection with criminal activity in violation of federal law or a threat to the national security and the investigation may obtain information that would help to protect against such activity or threat.
3. The investigation may obtain foreign intelligence that is responsive to a foreign intelligence requirement.

The theory is simple and democratically elegant. We don’t want the FBI investigating Americans for First Amendment protected activity. In other words, we don’t want the criminalization of political differences. So we require the Bureau to have a degree of information that would justify an investigation even to open one in the first place. Lots of people in the FBI don’t like Hillary Clinton? Sorry. That’s not a basis to open an investigation. On the other hand, the specific information that there was classified information on her private email server provided a predicate for an investigation.

I’m trying to imagine a world governed by the vision Dershowitz lays out in this oped, and how L’Affaire Russe would have played out in it—and I’m frankly having a little trouble. The basic reason is that he seems to be simply assuming that the FBI should not proceed with respect to matters where the standards of predication are fully met. Hence my questions.

James Comey has testified that the FBI first opened an investigation of Russian interference in our election in July of 2016. This was presumably a counterintelligence investigation, in the first instance. To comply with Justice Department guidelines, it could only have arisen because some information came in—probably as a result of ongoing monitoring of foreign intelligence targets—indicating a degree of interaction between the Russians and Trump campaign officials or figures. That is, the FBI would have had to make a judgment, at a minimum, that a counterintelligence investigation touching the Trump campaign or someone within it “may obtain foreign intelligence that is responsive to a foreign intelligence requirement.” If there was a criminal component to that investigation, it would also have had to have information suggesting that “An activity constituting a federal crime or a threat to the national security has or may have occurred, is or may be occurring, or will or may occur.” 

So here’s my first question to Dershowitz: Assuming that the information that came to the FBI in July 2016 properly met the standards for predication of either a national security investigation or a criminal investigation, should the FBI have declined to investigate it? That is, should the FBI have shrugged at the possibility of Russian recruitment of Trump campaign officials because Dershowitz concludes without the benefit of that investigation that “Even if it were to turn out that the Trump campaign collaborated, colluded or cooperated with Russian agents, that alone would not be a crime”? Note that Trump was not president at the time and that, therefore, no question arises at this stage as to whether a president can obstruct justice by exercising his constitutional authority to supervise the executive branch.

The story does not end there. Because when the FBI began investigating this matter, evidence arose of potential crimes among senior members of the Trump campaign. For example, in the course of investigating L’Affaire Russe, the FBI—and later the special counsel’s investigation—developed information suggesting that Paul Manafort and Rick Gates had engaged in a giant money-laundering scheme. Acting Attorney General Rod Rosenstein’s appointment letter for Mueller specifically gave him jurisdiction over “any matters that arose or may arise directly from the investigation.”

So here’s my second question for Dershowitz: When the FBI is conducting a properly predicated national security investigation of a Russian intelligence operation against a domestic presidential campaign, and the investigation learns of millions of dollars of money laundering, should the FBI ignore this information?

The tale goes on. In the course of the FBI’s investigations, certain witnesses were not entirely candid when interviewed by the Bureau. George Papadopoulos and Michael Flynn have already pleaded guilty to lying to the FBI on matters core to the FBI’s original focus: that is, Russian interactions with the Trump forces.

So here’s my third question for Dershowitz: When the FBI is conducting a properly predicated national security investigation of a Russian intelligence operation against a domestic presidential campaign, and people associated with that campaign lie to investigators, should the FBI ignore the lies?

This brings me to obstruction of justice. I understand that Dershowitz believes that the obstruction statutes cannot properly be applied to the president acting within his constitutional role as the embodiment of the executive branch. I’ll leave it to another day to argue with him on that core point, on which I think he’s wrong. For present purposes, however, we don’t need to reach that admittedly tricky question. All we need to observe is that in the context of a properly predicated national security investigation in which evidence of major criminality had arisen and in which more than one witness had already lied to the FBI, the FBI director alleged that the President had asked him for a pledge of loyalty and had cleared the room and asked the FBI director to go easy on one of the people who had lied to the Bureau and that he had otherwise put pressure on law enforcement leadership on the conduct of the case. We observe further that he stayed in touch with the witness in question and even told him to “stay strong.” We observe that he fired the FBI director, reportedly boasted to the Russian government that he had relieved pressure on himself by doing so, and he then continued to the threaten and bully the law enforcement leadership over the specific matter at issue. So here’s my fourth question for Dershowitz: Given this pattern of behavior and the fact that certain efforts to obstruct an investigation—for example, witness tampering—are decidedly not within the purview of the presidential role in supervising the Executive Branch, should the Mueller investigation have entirely declined even to look at the President’s pattern of behavior with respect to the Russia investigation?

My broad point here is that this is conduct that in any other context the FBI would be all over. Imagine that the Russians had been putting out feelers to, say, a U.S. defense contractor and that when the FBI began investigating those feelers as a counterintelligence matter, it had uncovered big-time money laundering. Imagine that the officers of the company had then lied in interviews, and the company chief had engaged in a bizarre pattern of efforts to influence the investigation. There would simply be no question that the FBI would investigate aggressively—and that the Justice Department would prosecute aggressively, using whatever malleable statutes were available.

So here’s my final question for Dershowitz: By saying that such conduct shouldn’t even be investigated in the political context, aren’t you really arguing for a zone of impunity for criminal conduct when it involves politicians? That is, aren’t you saying that the FBI and the Justice Department should ignore behavior they normally investigate and prosecute?

These are not rhetorical questions. I mean them very seriously and would love to publish Dershowitz’s thoughts in response to any or all of them.