The Volokh Conspiracy

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Volokh Conspiracy

Q: What do Alan Dershowitz and Willie Mays Have in Common?


[Updated at end of text]

Willie Mays, who has as good a claim as anyone on the title of Greatest All-Around Ballplayer Ever, spent the last year or so of his illustrious career stumbling and bumbling around center field for the NY Mets. It was deeply embarrasing for him, and hard to watch for those of us who wanted to keep the memories of Mays in his prime, and he has become, perhaps a little unfairly, a symbol of the aging star who overstays his welcome in the public eye and who tries, unsuccessfully, to outfox Father Time.

Here's Prof. Dershowitz, commenting on Michael Cohen's guilty plea on Fox News:

What's happening is a special prosecutor is making all of his decisions based on false statements. You know, it is interesting. In other parts of the world, you can't even prosecute people for that…. I think the weakness of Mueller's substantive findings are suggested by the fact that he has to resort to false statement prosecutions. Which really shows that he didn't start with very much. And the very fact that he is conducting an investigation has created these crimes. These are not crimes that have been committed prior to his appointment. They are crimes that were committed as a result of his appointment and that raises some questions about the role of special prosecutors in creating crimes. Creating opportunities for crimes to be committed. In the end, I don't think Mueller is going to come up with very much in terms of criminal conduct that existed before he was appointed, and that is quite shocking.

That's a lot of irresponsible nonsense to pack into one paragraph. But let's begin, more charitably, with an idea buried deep in these comments that is not, in the abstract, an unreasonable one: the idea that investigations that produce nothing more than an indictment for lying to the prosecutors—think Martha Stewart, or Scooter Libby—can be very troubling, bringing little or no credit to the prosecutors involved. The absence of any underlying criminality suggests that the investigation itself, which was necessarily premised on the notion that there was criminal conduct, was ill-advised and unnecessary, and it can seem unfair to punish people for lying to investigators in the course of an investigation that should not have occurred in the first place.

But that's in the abstract, and we're not talking here about the abstract, we're talking about the concrete—this investigation and this prosecutor. Yes, we should be concerned with investigations that conclude with nothing more than perjury indictments. But this investigation has, as Prof. Dershowitz appears to have forgotten, already obtained indictments and convictions against senior Trump campaign officials (Rick Gates and Paul Manafort) for substantive crimes unconnected with any perjury charges (including conspiracy to defraud the United States).

Plus, this investigation has, of course, not concluded, and neither I nor Prof. Dershowitz nor anyone else knows that Mueller is going to come up with. Prof. Dershowitz, invoking the magical powers that are often attributed to Harvard Law School professors, believes that he does know. "In the end," Dershowitz opines, "I don't think Mueller is going to come up with very much in terms of criminal conduct that existed before he was appointed, and that is quite shocking."

And you base that assessment, Prof. Dershowitz, on what, exactly? You have inside information on what Mueller "is going to come up with"? You know what transpired during the meetings and phone calls that Cohen now admits to having participated in? You know whether Roger Stone acted as a go-between for the Trump campaign and Wikileaks?

He's entitled to his opinion, of course—but it is an opinion that is based on absolutely nothing whatsoever. I think he got his syntax all wrong—surely what he meant to say was "If, as I believe will be the case (though that is based on no information whatsoever), Mueller does not ultimately come up with anything in terms of criminal activity, then I will be shocked."

And really, to say that Mueller "created these crimes," and that Michael Cohen (or Michael Flynn, who also pleaded guilty to perjuring himself in testimony to the prosecutors) committed perjury "as a result of [Mueller's] appointment," is irresponsible at least, and ridiculous at worst. Yes, it is true that the investigation is a "but-for" cause of Cohen's and Flynn's perjury, in the sense that had there been no investigation Cohen and Flynn would, obviously, not have had the opportunity to lie to investigators. But it was Cohen and Flynn who "created these crimes" by choosing to lie to prosecutors; saying Mueller created them is like saying that Donald Trump himself created them (by choosing Cohen and Flynn as his associates which, had it not occurred, would not have given them the opportunity to lie to investigators), or saying that the doctor who cured Michelangelo's childhood yellow fever created the David—but for that cure, after all, there would have been no statue.

And speaking of perjury: I find it ironic that many of the same people who criticize Mueller for "resorting to perjury charges" are also among those who criticize him for not having yet brought any criminal charges arising out of conduct during the 2016 campaign and urging him to wrap things up. One of the reasons we criminalize lying to prosecutors—and incidentally, what is the meaning of that non sequitur that "in other parts of the world, you can't even prosecute people for that"? Surely it is also true that in many parts of the world, they break your bones if you lie to prosecutors, and I really fail to see the point that the professor is making—is because it is often used, successfully, to conceal criminal activity, making it more difficult than it would otherwise be to uncover criminal behavior. It's hardly fair to criticize Mueller for not having completed his investigation yet while simultaneously making excuses for those who have been lying to him and making his job, as a consequence, that much more difficult. Perhaps, if everyone involved in this case were not lying about their contacts with the Russians, the investigators would have been able to complete their job in a more timely fashion.

Finally, it is rather astonishing that virtually everyone connected to these events has been lying about contacts with the Russians, in one form or another, whether those lies take place under oath (Gates, Flynn, Cohen, Papadopoulous) or not (Jeff Sessions, Jared Kushner, Donald Trump Jr., President Trump). Of course, people lie to prosecutors for many reasons—personal embarrassment, for example, or faulty memories, or the stress of being under investigation, or the desire to protect friends or family members—some of which do not, in and of themselves, indicate any criminality. They also frequently lie in order to conceal criminal conduct. And when so many people lie about the same thing—their involvement in communication with the Russians—one is surely entitled to be suspicious that something untoward was going on.

[UPDATE: Prof. Dershowitz responded to this posting here, and the exchange between us continued here]