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Alan Dershowitz Ignores the Obvious in Discussing Rosenstein-Mueller Memo


Special Counsel Robert Mueller‘s response to Paul Manafort‘s motion to dismiss his criminal case has been making waves in the legal world, as it revealed some details regarding the authority granted to him by Deputy Attorney General Rod Rosenstein. The redacted memo from Rosenstein to Mueller has been the subject of some questionable legal opinions from both the right and the left, with famed Harvard law professor and defense attorney Alan Dershowitz now joining those ranks.

Wednesday night, Dershowitz appeared on Hannity, calling several aspects of the Mueller investigation into question. In the clip above, he begins by addressing the recent report that Mueller does not consider President Donald Trump to be a “target” of the investigation, but merely a “subject.”

“If after a year of very thorough investigation … if they couldn’t have shifted him from a subject to a target, there’s nothing there,” Dershowitz said.

There are two problems with this statement. First of all, the purpose of Mueller’s investigation is not just to investigate Donald Trump, but to investigate the Trump campaign‘s potential ties to Russian efforts to interfere with the 2016 election. Even if Mueller believes that Trump is completely innocent, that doesn’t mean he doesn’t have evidence that others connected to his campaign committed wrongdoing.

Second, Dershowitz ignores the meanings of the words “target,” and “subject.” While the average person may take these terms to mean one thing or another, the Justice Department has its own specific definitions. According to section 9-11.151 of the Justice Department’s U.S. Attorney’s Manual, a subject is “a person whose conduct is within the scope of the grand jury’s investigation.” That means that Mueller is indeed investigating Trump’s conduct. It’s the DOJ’s policy with subjects that if they are sent a subpoena, an “Advice of Rights” form is included, just as with targets.

A target, on the other hand, is:

a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.

The definition goes on to say, “An officer or employee of an organization which is a target is not automatically considered a target even if such officer’s or employee’s conduct contributed to the commission of the crime by the target organization. ”

That means that Trump may well have contributed to crimes by his campaign, even if he hasn’t been named a target. Also, just because Trump may not have “automatically” been considered a target, that doesn’t mean he won’t be, depending on how the investigation plays out.

While the evidence thus far may not have provided enough evidence to consider Trump a target, which would make charges likely, the fact that he’s still a subject mean’s he’s not in the clear yet. Mueller’s investigation is still ongoing, and he still has people left to interview. It’s definitely possible that when it’s all said and done Trump will be cleared, but Dershowitz — like anyone not involved in the investigation — is in no position to say at this moment that there’s nothing there.

Let’s move on to Dershowitz’s next statement, which is far worse.

“Now they’re going after very, very weak issues. Collusion. I challenge Mueller to tell me what statute is violated by collusion,” he said. This is in reference to the part of Rosenstein’s memo that addresses allegations against Paul Manafort. The memo mentions allegations that Manafort “committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election … in violation of United States law.”

Dershowitz blasted this for referring to “colluding,” as if that itself were a crime.

“You can’t investigate sins, you can only investigate federal crimes, and there is no such federal crime as collusion.”

Except the memo doesn’t claim that colluding itself is the crime, rather it addresses allegations that Manafort may have committed crimes in the process of colluding with Russians. Similarly, the other allegations regarding Manafort are described as “crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych.”

No one is interpreting that to mean that Rosenstein thinks that the act of receiving payment for work is itself a crime. Rather, we know by now that there are allegations related to those payments, such as Manafort allegedly hiding those payments from the U.S. government.

Even if Dershowitz is upset that the memo only refers generally to “a crime or crimes” that Manafort may have committed by colluding with Russia, there’s still something else that he’s ignoring: the memo is heavily redacted. The section immediately preceding the one about Manafort’s allegations is blacked out. For all we know, that section names specific crimes related to collusion, and Rosenstein may have opted not to list them again. Even if that’s not the case, though, Rosenstein’s memo clearly outlines the subject matters for Mueller to investigate.

In the past, Mueller’s opponents had criticized his investigation for having seemingly endless authority to investigate anything, even matters unrelated to Trump’s campaign. This week’s court filing, with the attached memo, showed that this is not the case. Mueller provided reasons for investigating seemingly unrelated matters, explained the limitations of his investigation, and described how he has reported to Rosenstein, despite claims that there’s been no one overseeing him. These latest gripes are nothing more than nitpicking over nothing.

By the time Mueller’s investigation is over, he may very well not bring charges against President Trump or his campaign for illegal activities involving Russia. That doesn’t mean the investigation is improper.

[Image via Fox News screengrab]

This is an opinion piece. The views expressed in this article are those of just the author.

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