....is not Constitutionally Permissable.” Alan Dershowitz, Constitutional Lawyer— Donald J. Trump (@realDonaldTrump) June 13, 2019
So in a discussion between Alan Dershowitz and Solomon Wisenberg, it's a clown-show to see who can be the biggest clown.
First, Dershowitz mis-states what the Mueller report said:
But there's no legal right to Mueller's testimony. There's no legal right to any of the Mueller Report. Indeed, even though I wrote the introduction to the Mueller Report, the Mueller Report never should have been written. There's no room under our Constitution for special counsels, special prosecutors, reports. Prosecutors have the right to say only one thing. We have concluded that there's no evidence sufficient to charge the president with Russian collusion or obstruction of justice, period. I'm taking no questions, I'm making no public report. I'm giving my findings to the attorney general. No prosecutor should ever go beyond that.
Barr's summary was more accurate. And there is, of course, a legal right to Mueller's testimony, and to the Mueller report: it's the statute under which Mueller was appointed and operated. Dershowitz sweeps that statute aside because it is inconvenient to his argument, and simply because he doesn't like it. Then he drags the red herring of Comey across the trail:
We all agreed with that when Comey went beyond that with Hillary Clinton. I don't understand the difference between the criticism of Comey for saying that Hillary Clinton engaged in extreme carelessness. Everybody criticized that. And then we want to know why Mueller didn't charge the president. It's the same thing. The whole enterprise of special counsel, special prosecutors is inconsistent with the Constitution. I hope we've seen the last of it.
His references to Comey are inapt: Comey was not a prosecutor, he was an investigator, the head of the FBI. The FBI doesn't try cases, it investigates and arrests persons for criminal violations of law. It works with the prosecution, but the prosecution decides whether or not to go to trial, and what to charge. Comey didn't "violate the Constitution," in Dershowitz' terms, he acted beyond the scope of his office and with prejudice against the subject of an investigation. Bad practice, but not a violation of the fundamental law of the land. And Mueller acted precisely to avoid what Comey did, something else Dershowitz prefers to ignore.
The argument this special counsel law is unconstitutional was tried in the courts and rejected. Again, Dershowitz uses an argument he couldn't even get into a law review, because it isn't supported by case law. He doesn't want little details like reality to get in his way. He's a long way from making a defensible claim.
Wisenberg, however, likes where this is going:
SOLOMON WISENBERG, FORMER DEPUTY INDEPENDENT COUNSEL: First of all, they're completely different, those two roadmaps. Jaworski and the grand jury was very careful not to make any arguments whatsoever, not to draw any conclusions. They just said here's -- on March 17th, 1973, President Nixon had a conversation with these two people. Then they listed the tape recordings and the grand jury testimony that the House could look at. Totally different than the Mueller report, which made a number of legal and factual conclusions. That's number one.
But number two, more importantly for the people that still believe that firing James Comey could ever be criminal obstruction of justice, the Watergate roadmap, which was all about obstruction of justice, that's what the grand jury indicted people for, never in any way mentions the firing of Archie Cox as obstruction of justice.
DERSHOWITZ: Absolutely right.
WISENBERG: And I've looked at just about every book on Watergate. I don't believe Jaworski's people ever even thought about indicting anyone under an obstruction theory for firing Cox.
"Absolutely right?" More like: "Absolutely bullshit." Jaworski and Mueller were working under very different rules. Mueller was appointed under a statute, and that statute said he had to make a report. Jaworski was simply carrying out an investigation as he saw fit. He had no special counsel statute to guide him or comply with. He was appointed by the President and acted wholly at the permission of the President. Mueller was appointed by the acting Attorney General under a statute passed by Congress for precisely this situation. Trump could not directly fire Mueller. Wisenberg may not like the current law, but his opinion doesn't make the law invalid.
And the Saturday Night Massacre may not have been a crime considered by the House, but again the Special Prosecutor at that time was an ad hoc arrangement working by the authority of the President. Since Watergate we have had statutory special prosecutors precisely to prevent another Saturday Night Massacre. These two lawyers know that, but it's inconvenient to their argument, so they hide it. But it invalidates their argument ab initio.
They wouldn't even get into a law review with this; which is a pretty damned low bar indeed. In a court of law, they'd be lucky not to be fined for wasting the court's time. Their arguments aren't worth the paper they are printed on.