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Dershowitz On Special Counsel: The Investigation Should End

DALLAS (CBSDFW.COM) – Civil Liberties attorney Alan Dershowitz said Wednesday that he is fearful of the criminalization of political differences in today's discourse and that he doesn't think special counsels are the right way to approach criminal justice.

Dershowitz spoke to CBS 11 political reporter Jack Fink about Special Counsel Robert Mueller's investigation into whether the Trump campaign colluded with the Russians to affect the outcome of the 2016 election.

"I think the investigation should end and I think the Congress should appoint a special non-partisan commission," said Dershowitz. He said he thinks a Congressional committee would be too partisan.

"That's the way it's done in other western democracies," he continued. "They don't appoint a special counsel and tell them to 'Get that guy...' that's what they did in the Soviet Union. Lavrentiy Beria, the head of the KGB said to Stalin, 'Show me the man, and I'll find you the crime!'" That's what special counsel does."

Dershowitz was quick to point out that he was not making a direct correlation between the United States and the former Soviet Union. "I'm not comparing obviously the Soviet Union and the United States. We have structural protections in our Bill Of Rights but it's going down the wrong direction."

"The issue of criminalization [of political differences] has not been subject to rational discourse," said Dershowitz. "Democrats hate when they politicize and criminalize political differences against Democrats... when they did it with Bill Clinton. Republicans hate when they do it against their people... President Trump. But each one supports it when they're against their enemies and partisanship prevails over principle. It's very hard to have a reasonable discussion."

Dershowitz said that citizens should fear the direction of this investigation for their own sake. He warned that today criminalization of political differences appears – now – to only affect presidents and political leaders. "Tomorrow it can affect you and me. If you give the prosecutor the ability to stretch the criminal law to fit a target, it's very dangerous."

Dershowitz said that special counsels are not the right way to approach criminal justice. "When you appoint a special counsel you give them targets and you say, 'You better get that guy or the people around him...and we're going to give you tens of millions of dollars. And if you come up empty handed you're a failure.'"

Dershowitz said that if an ordinary prosecutor goes months without finding a crime then "that's great, no... there have been no crimes committed." He says not so with a special counsel. "Special Counsel always has the goal of 'getting the people.' They're going to find crimes, or they're going to manufacture crimes or they're going to stretch the criminal law to fit the 'crimes' because they're not going to come away empty handed."

Dershowitz was asked what he thinks should happen now. Should Deputy Attorney General Rod Rosenstein curtail the investigation? "I think Rod Rosenstein needs to say to the special counsel, 'Do not investigate the private finances of the president before he became president; do not investigate his relatives; do not investigate his sex life.' Don't do – to President Trump – what Ken Starr did to President Clinton," said Dershowitz . "It started with Whitewater and ended up with a blue dress. That's not the appropriate way a special counsel should operate."

Rosenstein appointed Robert Mueller as special counsel after Attorney General Jeff Sessions recused himself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.

Dershowitz had some strong words for Rosenstein. "I think Rod Rosenstein is concerned more about his reputation than anything else. I don't understand why he's not recused," said Dershowitz. "He is the key witness in the firing of Comey."

Dershowitz said if he were President Trump's lawyer, Rosenstein would be the first witness he would call asking him, "Rod Rosenstein, you wrote the memo... you justified the firing... explain how you justified the firing. Did the President tell you to do it? Did you tell the President to do the firing?"

Dershowitz said the American public is quickly losing faith in the justice system and he called that a terrible, terrible tragedy. "We need neutral objective people administering justice. You can't have an FBI agent like Strzok who is writing messages saying 'oh we have to stop Trump from becoming President.'"

Dershowitz was referring to text messages between FBI employees Peter Strzok and Lisa Page, a senior FBI lawyer who was also working on the Mueller team.

During the campaign, Strzok led the investigation into Hillary Clinton's use of a private server while Clinton was Secretary of State. The texts sent between Page and Strzok were dated between August 2015 and December 2016, the duration of the campaign. They raise concerns about Strzok's impartiality and were likely to prompt more questions about the investigation into Clinton's server.

Strzok was dismissed from Special Counsel Robert Mueller's team in August, 2017.

"The American public insists that justice not only be fair, but be seen to be fair – appear to be fair. You need the appearance and the reality of justice. We're not having that today," said Dershowitz.

Dershowitz said he thought Trump should not have fired former FBI Director James Comey in the way that he did. "Look, Comey should have been fired. I think Clinton would have fired him had she been elected," said Dershowitz. "[Comey] did a terrible, terrible thing during the election and he may have influenced the election. That's not the job of the FBI. He should have been fired but I think it was a mistake for the President to fire him in the manner that he did," he continued. "I don't think it was illegal – I think it was a constitutionally authorized act – but I think we wouldn't have a special counsel today if not for that firing."

Dershowitz said he sees absolutely no evidence that there was either collusion between Trump and the Russian government and/or obstruction of justice. "I would think by this time there would be some public disclosure of any such charges," said Dershowitz.

"Collusion – if it happened, and there's no evidence that it happened – would be a sin, it would not be a crime," said Dershowitz. "It is not a crime to collude about an election unless there are payments made, or violations of the federal law involving gifts to campaigns from foreign governments. But collusion itself is not a crime."

"I think that the president cannot be charged with obstruction of justice for exercising his constitutional authority. He has the authority to fire anybody in the executive branch – the Supreme Court has said that."

Regarding a possible impeachment, Dershowitz said "no one knows" whether or not there has to be a crime committed by the President – while he is in office – for him to be impeached.

"I believe the Constitution says what it means. The Constitution says in order to be impeached, the President must have committed bribery, treason or other high crimes and misdemeanors," said Dershowitz. "I take that seriously. And I don't think a President can be impeached for doing something that isn't criminal." He said he did not think President Bill Clinton should have been impeached either.

Dershowitz said he believes that no party should take up impeachment unless they are sure they can remove the President.

"You don't go after the President unless he's committed an act which would warrant removal. And for that to happen, [there] would have to be wide bipartisan support," said Dershowitz. "There is no bipartisan support for impeachment of this president today."

Dershowitz said he has taken a lot of heat from friends because some of his positions appear to "help" President Trump. "I didn't vote for President Trump, I voted for Hillary Clinton. But I'm going to be honest about the law, whoever is the President."

Dershowitz was in town to speak before the Institute of Policy Innovation's Hatton W. Sumners Distinguished Lecture Series Wednesday. The Institute of Policy Innovation is a free-market think tank based in Irving.

He also talked with CBS11 about how it's likely the census citizenship question issue will end up at the U.S. Supreme Court.

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