Having Robert Mueller as special counsel probably isn’t going to lead to Trump’s impeachment, but it won’t necessarily clear him either. As the editors of National Review cannily observed,
Special prosecutors have a tendency to begin in one place and end up somewhere wildly different — Whitewater turned into the Lewinsky scandal — and they also have a tendency, lo and behold, to want to prosecute.
The purpose of appointing a special counsel within the Justice Department is not to learn the whole truth. The object is to develop admissible evidence against particular targets and determine whether that evidence is sufficient to bring a prosecution.
That means Mueller will be looking for targets for prosecution. He will collect evidence, and continue to do so until he either runs out of avenues for investigation or he finds enough to present for potential indictments.
There’s no mandate for a special counsel to find the whole truth of a matter.
There is no search for exculpatory evidence or for information that is neither inculpatory nor exculpatory, but that frames the big picture. Moreover, the work of a special prosecutor is done in secret. He hears no testimony in public and generally produces no report. If he decides to indict, the indictment is his report. If he decides that no indictment is warranted, his appropriate course of action is to simply say that, with no further comment. If he decides to produce a report, it is likely to be one-sided, since prosecutors generally focus on evidence that points to guilt.
Just like any prosecutor, Mueller’s job is the build a case for prosecution. It’s not his job to establish the entire body of facts. It’s his job to collect and present evidence–ask any lawyer and they will tell you those are two very different things.
The role of a special counsel, like every prosecutor, is adversarial. Neither a criminal investigation nor a criminal trial is a search for truth. It vemay be a search for justice, but justice and truth are often incompatible as evidenced by the maxim that it is better to let 10 guilty people go free than for one innocent to be wrongly convicted. The rules of evidence—which exclude much truthful information—are not the same rules that scientists use in determining the truth. Scientists don’t have exclusionary rules based on privacy and other constitutional rights.
Dershowitz doesn’t think it’s very likely that Trump could be prosecuted for obstruction of justice. Regardless of what you might read or hear from Democrats about “smoking guns” and memos, there’s no obstruction if there’s no criminal investigation. The FBI was pursuing a counterintelligence operation, not a criminal one.
That means even if Trump ordered Comey to stop that investigation, it would be very unlikely that could be called obstruction of justice. Improper? Absolutely. Politically naïve and stupid? Sure. Illegal? Hard to make that stick.
Given that, what does Dershowitz recommend? A nonpartisan investigatory commission specifically charged with finding the truth–similar to the ones Congress appointed to investigate the Challenger disaster in 1986 and the 9/11 attacks.
There is no incompatibility between such a commission and the special counsel; while there might be some overlap in the evidence considered, each would consider information that is not central to the job of the other.A commission would be looking as much to the future as the past. At the end, the American public would learn the whole truth about any alleged connections between the Trump campaign/administration and Russia, as well as the truth about the dangers to national security caused by leaks to the media from within the government.
The main point Dershowitz emphasized is the commission must be independent and nonpartisan in every way. He suggested using career prosecutors (non-partisan ones), “diplomats, university professors, leading scientists, religious and civic leaders.”
Dershowitz’s advice is sound.
If the president truly wants to be cleared, and have the entire truth exposed, an independent commission is the way to go. Otherwise, Mueller’s investigation, like Ken Starr’s in the 90s, might remain open for years, since no prosecutor who thinks he has a case with just one more piece of evidence wants to stop searching if he thinks it exists and can indeed be found.