Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School.
That Dershowitz is a brilliant legal scholar is not in dispute. He has demonstrated that brilliance in courtrooms defending some of the nation’s most celebrated criminal defendants and before appellate tribunals arguing complex constitutional issues.
In recent months, Dershowitz has made repeated trips through the cable news circuit expressing his belief that sufficient probable cause did not exist to appoint Special Counsel Robert Mueller to investigate “collusion” between the Russian government and President Trump’s 2016 presidential campaign.
Dershowitz Parsing “Collusion”
Dershowitz has taken the position in many different forums that even if there was “collusion” between the Russian government and the Trump campaign, collusion is not a crime. However, conspiracy to violate other federal statutes, including those that make it a crime for foreign nationals to contribute to campaigns in local, state or federal elections, is a serious federal offense.
The use of the term “collusion” is misleading, especially considering there is no crime known as “collusion.”
Trump Campaign Should Worry About Conspiracy Not Collusion
Deputy U.S. Attorney General Rob Rosenstein’s May 17, 2017 mandate to Special Counsel Robert Mueller directed him to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump …”
Neither Mueller as part of the Rosenstein mandate nor the FBI prior to the issuance of that mandate has investigated “collusion” per se. What these law enforcement officials have investigated is whether the Trump campaign and Russian intelligence “coordinated” a covert action to engage in criminal activity to get Trump elected president of the United States.
Susan Hennessey, managing editor of Lawfare, told NPR’s All Things Considered host Al Shapiro in a July 10, 2017 interview that “there are all sorts of coordination you could have with a foreign government that would be illegal. So, it wouldn’t fall within that technical definition of collusion.”
Foreign Governments Cannot Make Campaign Contributions
What sort of coordination with a foreign government constitutes a criminal violation in an American election?
52 U.S.C. § 30121 provides that: “A foreign national shall not, directly or indirectly, make a contribution or a donation of money or other thing of value, or expressly o impliedly promise to make a contribution or a donation, in connection with any Federal, State, or local election.
The “other thing of value” extends § 30121 beyond a cash donation. Politically damaging information about Donald Trump’s political opponent, Hillary Clinton, was a “thing of value,” a potential “in kind” contribution to the Trump campaign. Russian intelligence had politically damaging information about Clinton that it had obtained through unlawful means. Trump personally knew that the Russian government had access to this information, especially Clinton emails and emails of the Democratic Party, obtained by its intelligence agencies through criminal means. As a candidate, Trump even encouraged the Russians to release those emails.
Russia Interfered with Presidential Election
By the time the Rosenstein mandate was issued in May 2017, the American intelligence community had previously informed President Obama and the general public (October 2016) that the Russian government had interfered in the presidential election.
The U.S. Justice Department, through the FBI, had developed credible information that Lt. General Michael Flynn, Jared Kushner, Donald Trump, Jr., Paul Manafort, George Papadopoulos, and Jeff Sessions—all members of the Trump campaign—had either met or had electronic communications with representatives of the Russian government to 1) either get political “dirt” on the Clinton campaign or 2) to discuss quid pro quo arrangements to get America’s sanctions against the Russians lifted in exchange for the assistance Russian intelligence had given to the Trump campaign.
Didn’t Have Probable Cause?
Dershowitz has, in particular, lamented to Fox News that Rosenstein should not have appointed the Special Counsel because the Deputy Attorney General did not have sufficient “probable cause” to believe that a crime had been committed by the Trump campaign.
In a 1949 decision, Brinegar v. United States, the U.S. Supreme Court said that probable cause exists where the facts and circumstances within a law enforcement official’s knowledge, and of which the official has reasonably trustworthy information, and is sufficient to “warrant a belief by a man of reasonable caution that a crime [has been] committed.”
By the time Rosenstein issued his Special Counsel mandate, the Justice Department had information, as reported by Reuters the day after the mandate was issued, that “Michael Flynn and other advisers to Donald Trump’s campaign were in contact with Russian officials and other with Kremlin ties in at least 18 calls and emails during the last seven months of the 2016 presidential race …’
Reuters reported that in January 2017 President Trump, through White House spokespersons, publicly denied there had been any contacts between his campaign and Russian officials during the 2016 campaign.
This official denial was a lie.
Candidate Trump was given a “classified briefing” in August 2016 by the FBI that the Russian government was likely to infiltrate his campaign.
There was more than sufficient probable cause to believe Candidate Trump was aware that the month before (July 2016) Donald Trump, Jr., Paul Manafort, and Jared Kushner had met in Trump Tower with Russian government officials to discuss political dirt the Russians had on Hillary Clinton.
Thus, in January 2017, President Trump and his surrogates knew about contacts and meetings General Flynn and Jeff Sessions had with Russian officials.
More than Enough Evidence for Probable Cause
So it is irrefutable that by May 2017 when the Rosenstein mandate was issued, there was ample probable cause that President Trump’s 2016 campaign had both “links” and “coordination” with the Russian government sufficient for the Deputy Attorney General to believe there had been a violation of 52 U.S.C. § 30121.
And it should be noted that two months before the Special Counsel was appointed, Attorney General Sessions had recused himself from the Russian probe. Sessions had either lied to or misled U.S. Senators during his January 10, 2017 confirmation hearing about not having any contact with Russians during the 2016 presidential campaign
Further, Michael Flynn had been fired by President Trump after it was disclosed he had lied about his contacts with Russian government officials during the transition period.
Those two events alone were sufficient to establish probable cause to believe there had been criminal links and/or coordination between the Russian government and the Trump 2016 campaign.
National Security Threat Mandated Investigation
The Brennan Center for Justice had said the U.S. Justice Department needs only an “articulable factual basis” of a possible national security threat or criminal activity to initiate a full-fledged criminal investigation, such as the one currently being conducted by the Special Counsel.
All the publicly disclosed facts considered, Rosenstein clearly had an “articulable factual basis” to appoint a Special Counsel to investigate possible criminal coordination between the Trump campaign and the Russian government designed to get Trump elected President of the United States.
While Rob Rosenstein may not have had “probable cause” within Alan M. Dershowitz’s definition a Special Counsel, the Deputy Attorney General had more than ample probable cause under the Supreme Court’s definition to appoint Robert Mueller.
Dershowitz has a right to his pro-Trump opinions, but he does not have the right to misinterpret the rule of law to the American public.