The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[Updated 12/11/2018 at end]
Last week, I published a post [here] criticizing the comments that Alan Dershowitz had made in a Fox News interview [here] concerning the Michael Cohen guilty pleas. Prof. Dershowitz responded to my post [here], chiding me for, among other things, "deliberately failing to quote" from his more extensive op-ed dealing with these issues [here]. I noted, parenthetically, that I hadn't quoted or cited Dershowitz' op-ed because I was unaware of its existence.
I would have been content to leave the matter there, but Prof. Dershowitz has again taken issue with what I wrote.
"It's no excuse that Post was unaware of my oped on the subject. Tom Brady would have done a bit of research—a simple Google search—before leveling an unfair attack based on an out-of-context TV snippet. I want the debate to be live so that the public can judge who is Willie Mays and who is Tom Brady. The only time ageists comment on my advanced age is when they disagree with conclusions and don't have good responses on the me merits."
First, let me be clear that I wasn't commenting on Prof. Dershowitz' age, any more than I was commenting on Willie Mays' age, in the original post; I was commenting on his performance in public view—on the field, as it were.
Second: I do not agree that I should have searched for and consulted his op-ed—or any of this other writings, for that matter—before writing the original post. I don't buy it. He said what he said, and an audience of many millions of people—no more than a handful of whom, surely, had read his op-ed—heard what he said. For the vast majority of those viewers, then, that is his contribution to the public debate on these matters. I hardly think it is unfair to base my criticism of what he said on what he said.
I am not unaware that it can be difficult to summarize complicated legal arguments in a sound bite or snippet. But that is just the risk you take when you voluntarily inject yourself into the public debate via TV interviews and sound bite snippets. Certainly, in the pressure of the moment, anyone may say things that are incorrect and/or misleading; I've done it myself. But the correct response in that case is a retraction, perhaps accompanied by an explanation or even an apology, not "Go read my other stuff and you'll see what I meant to say."
Third: "Read the op-ed," Prof. Dershowitz wrote, "and respond to that." Fine—I did, and I shall. I don't believe it strengthens Dershowitz' case.
"It was always an uphill struggle for Mueller, since collusion itself is not a crime. In other words, even if he could show that individuals in the Trump campaign had colluded with Russian agents to help elect Trump, that would be a serious political sin, but not a federal crime. Even if Mueller could prove that members of the Trump team had colluded with Julian Assange to use material that Assange had unlawfully obtained, that, too, would not be a crime. What would be a crime is something that no one claims happened: namely, that members of the Trump campaign told Assange to hack the Democratic National Committee before Assange did so. Merely using the product of an already committed theft of information is not a crime." (emphasis added)
That is incorrect. To be sure, "collusion" (whatever it may mean, precisely), or using stolen information, is not always a crime. But that's not what he said; he said—three times in one paragraph—that it is not a crime when in fact, in certain circumstances, it may well be. And we don't yet know, because Mueller has not completed his investigation, whether those circumstances did, or did not, pertain in connection with the 2016 election.
I can think of any number of very plausible "collusion" scenarios, based on (and consistent with) everything we now know about the actions of Trump campaign officials during the 2016 campaign, that would indeed constitute federal and/or state crimes. For instance:
It is unlawful for foreign nationals (and, by extension, foreign governments) to contribute, directly or indictly, "anything of value" in connection with a federal, state, or local election, and it is unlawful for anyone to "solicit, accept, or receive" such a contribution. 52 USC § 30121.
The Economic Espionage Act makes it a federal crime for anyone who "receives, buys, or possesses a trade secret, knowing the same to have been stolen or appropriated, obtained, or converted without authorization" if he or she "intend[ed] or kn[ew] that the offense will benefit any foreign government, foreign instrumentality, or foreign agent." 18 USC 1831.
It is a federal crime for any person "who acts as an agent, representative, employee, or servant, or any person who acts in any other capacity at the order, request, or under the direction or control, of a foreign principal or of a person any of whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a foreign principal," to "engage within the United States in political activities for or in the interests of such foreign principal" or to "act as … a political consultant for or in the interests of such foreign principal" or to "solicit, collect, disburse, or dispense contributions, loans, money, or other things of value for or in the interest of such foreign principal" without registering as a foreign agent with the DOJ. 22 USC § 611, 612.
It is a federal crime for anyone to "receive, possess, conceal, store, barter, sell, or dispose" of any "goods, wares, or merchandise, … which have crossed a State or United States boundary after being stolen, unlawfully converted, or taken, knowing the same to have been stolen, unlawfully converted, or taken." 18 USC § 2315
It is a federal crime to "knowingly steal, … or obtain by fraud, artifice, or deception" any "trade secret that is related to a ,,, service used in or intended for use in interstate or foreign commerce," intending or knowing that the offense will, injure any owner of that trade secret> It is also unlawful to "receive, buy, or possess such information, knowing the same to have been stolen or appropriated, obtained, or converted without authorization," and to "conspire with one or more other persons to commit" any of these offenses. 18 U.S.C.S. § 1832
It is a federal crime to "intentionally access without authorization" a computer "which is used in or affecting interstate or foreign commerce or communication" and obtaining information thereby, as well as accessing such computer "knowingly and with intent to defraud … and by means of such conduct furthers the intended fraud and obtains anything of value> 18 USC § 1030 et seq.
And that is just for starters, off the top of my head; there could well be additional crimes involved in conspiracies to accomplish any or all of the above. And the larger question of whether the Trump campaign was a "Racketeering Enterprise" under RICO.
Let me be clear: I am not saying that we know, at this point, whether these crimes have been committed. I don't know, and Prof. Dershowitz doesn't know, what facts Mueller has uncovered regarding what transpired during the many meetings and phone calls that now appear to have taken place between Cohen, Manafort, Roger Stone, Julian Assange, Donald Trump Jr., etc. etc. and agents of the Russian government in connection with the Wikileaks release of stolen DNC emails, and whether those contacts satisfy the elements of these violations.
But to say—as Dershowitz has said—that whatever happened, it was at most a "political sin" and not a federal crime is bizarre, irresponsible, and incorrect.
One final point. Prof. Dershowitz' op-ed also contained this:
"It is important to note that Special Counsel Robert Mueller does not have a roving commission to ferret out political sin, to provoke new crimes, or to publish non-criminal conclusions that may be embarrassing to the President. His mandate, like that of every other prosecutor, is to uncover past crimes. In Mueller's case those crimes must relate to Russia."
That also is incorrect. Mueller's mandate is spelled out, quite clearly, in his appointment letter [here]: In order to "discharge the [DOJ's] responsibilty to ensure a full and thorough investigation of the Russian government's efforts to interfere in the 2016 presidential election," Mueller was expressly authorized to conduct an investigation into "any links and/or coordination between the Russian government and individuals associated with the campaign of Donald Trump" (emphasis added). That is a considerably broader mandate than one limited to "uncover[ing] past crimes." Indeed, Prof. Dershowitz' own argument—that using information that was known to have been unlawfully obtained by a foreign government and which was being made available, in secret transactions, for the express purpose of influencing an American presidential election isn't a crime!—shows how much broader Mueller's mandate actually is.
I'd like to know if that actually happened, crime or no crime: did Trump campaign officials in fact use information that was known to have been unlawfully obtained by a foreign government and which they knew was being made available to them via secret transactions for the express purpose of influencing an American presidential election? And thankfully, that—and not Prof. Dershowitz' imagined mandate—is precisely what the American people, through our Department of Justice, have authorized Mueller to figure out as best he can. What the hell was going on? Were there "any links and/or coordination between the Russian government and individuals associated with the campaign of Donald Trump"? And if there were, what were they, and how did they operate, and for what purpose? It may turn out to be profoundly important for the future of this country that we have authorized an investigation to help us figure that out.
But Prof. Dershowitz' has mischaracterized all that for his viewers and readers. They would conclude—reasonably enough, based on Prof. Dershowitz' mischaracterization of the mandate—that the Mueller investigation will have somehow "failed" if it produces nothing more than uncover "political sins" and not indictable crimes. That is false, and it is pernicious.
Prof. Dershowitz responds:
There could be no better proof of my point than David Post's absurd catalogue of possible crimes that he believes are applicable to President Trump's conduct. I once wrote the following in an op-ed; "When I taught law at Harvard, I always gave a final exam that included what is called an 'issue spotter.' I presented a complex hypothetical case, often based on a real one, and asked the students to stretch their imaginations to come up with every conceivable crime that might be charged and every conceivable defense that might be offered. That was the first part of the question, and most students excelled at spotting the relevant issues. In the second part of the question, I asked them to use their judg[e]ment in deciding which, if any, of these crimes could realistically be charged and which defenses could realistically be offered. It was this part of the question that separated the very good lawyers, which included the vast majority of the students, from the exceptional ones. To be great lawyers requires the exercise of judg[e]ment, subtlety, nuance, and an ability to predict what the courts will do." Post's catalogue reminds me of the first group of students. The best example of the danger of Post's catalogue is his inclusion of the federal statute that states it a crime for anyone to "'receive, possess, conceal, store, barter, sell, or dispose["] of any "goods, wares, or merchandise, … which have crossed a State or United States boundary after being stolen, unlawfully converted, or taken, knowing the same to have been stolen, unlawfully converted, or taken.' 18 USC § 2315" If that statute were to be applied to first amendment protected material, the publishers of the New York Times, Washington Post, and The Guardian would still be serving their prison terms for publishing material stolen from Manning, Snowden, and Ellsberg, all of which crossed state lines. Obviously, to apply that 'stolen goods' statute to information used in a political campaign would be unconstitutional.
Now to Post's most dangerous point: that Mueller's mandate extends to exposing non criminal behavior. If the mandate were so interpreted, it would be unlawful, perhaps even unconstitutional. The purpose of a Grand Jury, as reflected in the Fifth Amendment, is not to grant a roving commission to a prosecutor who hears only one side of the case. It would violate every norm of fairness to allow a prosecutor to use the imprimatur of the Justice Department to present a one-sided, political attack against any citizen, including the President. Grand Juries and Prosecutors have one job and one job alone; to uncover crime, not to reveal sin. Revealing sin was the function of the inquisition and perhaps the Starr chamber. It is not the proper function of an American grand jury or prosecutor.
If the shoe were on the other foot—if a President Hillary Clinton were being investigated by a special council [sic]— I doubt that we would be hearing such dangerous anti-civil liberties interpretations from so distinguished a professor as David Post.