The Corruption of Justice In the Justice Department

Stone Indictment Follows Concerning Mueller Pattern

Alan Dershowitz
The Hill
 
The indictment of former Trump associate Roger Stone follows a long pattern that should raise serious concerns about the special counsel investigation.

Like virtually all of these indictments, the indictment of Stone does not charge any substantive crimes relating to Russia that were committed before Robert Mueller was appointed as special counsel. It charges crimes that grew out of the investigation itself and were allegedly committed after Mueller was appointed.

Recall that Mueller’s primary job was to uncover crimes that already occurred relating to Russian involvement in the 2016 election. He also was authorized to investigate and prosecute crimes growing out of the investigation, such as perjury and obstruction of justice, but this role was secondary to the primary one.

Well, it turns out that the secondary role has produced many more indictments of Americans than the primary one.
A review of all the indictments and guilty pleas secured by Mueller shows that nearly all of them fall into three categories.

(1) Process crimes growing out of the investigation itself, such as false statements, perjury, obstruction of justice and witness tampering. These crimes resulted from the investigation itself. That doesn’t make them less serious, but it is relevant to evaluating the overall success or failure of Mueller’s primary mission.

(2) Crimes that occurred before Mueller was appointed but that cover unrelated business activities by individuals associated with President Trump. The object of these indictments is to pressure the defendants to provide evidence against the resident.

(3) One indictment against Russian individuals who will never be brought to justice in the United States. This indictment was largely for show.

Mueller’s tactic, as described by U.S. District Judge T.S. Ellis, III, is to find crimes committed by associates of President Trump and to indict them in order to put pressure on them to cooperate. This is what Judge Ellis said about the earlier indictment of former Trump presidential campaign chairman Paul Manafort: “You don’t really care about Mr. Manafort’s bank fraud – what you really care about is what information Mr. Manafort could give you that would reflect on Mr. Trump or lead to his prosecution or impeachment.”

Judge Ellis also pointed out the dangers of this tactic: “This vernacular to ‘sing’ is what prosecutors use. What you got to be careful of is that they may not only sing, they may compose.” This is all too common a tactic widely employed by prosecutors, particularly in organized crime and other hierarchical cases. But the fact that it is common does not make it right. Civil libertarians have long expressed concern about the tactic of indicting someone for the primary purpose of getting them to cooperate against the real target.

I have been writing about this for decades. In fact, I coined the term “compose”  that Judge Ellis cited. But most fair-weather civil libertarians have remained silent with regard to Mueller because his target is President Trump, who they despise. The American Civil Liberties Union, which is flush with cash since Trump became president, has expressed little criticism of Mueller’s anti-civil liberties tactics.

It seems clear that the manner by which Roger Stone was arrested — an early-morning raid on his home, observed by media — was intended to put pressure on him to cooperate. Ordinarily, a white-collar defendant is allowed to self-surrender to authorities, unless there is fear of escape, which does not appear to be the case here, as evidenced by his low bail. Whether Stone “sings” or “composes” remains to be seen.

He has said he would never cooperate, but attorney Michael Cohen said he would take a bullet for President Trump — before he turned against him in an effort to get a reduced sentence. Prosecutors have many weapons at their disposal to get reluctant witnesses to cooperate, such as threatening to indict family members as in the Michael Flynn case. Civil libertarians should be concerned about the tactics being used by Mueller to get witnesses to sing. All Americans should be concerned about the ends-justify-the-means approach taken by the special prosecutor.

If, in the end, Mueller comes up relatively empty on substantive crimes relating to Russia that were committed before he was appointed, and can point only to the three categories of alleged crimes described above, it will be difficult to declare his investigation a success, or his appointment justified by the results.

Based on what we have seen thus far, it would have been far better if a nonpartisan commission of experts, like the 9/11 Commission, had been appointed to investigate Russian involvement in the 2016 election and to make recommendations about how to prevent Russia from trying to influence future American elections.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. His new book is “The Case Against the Democratic House Impeaching Trump.” You can follow him on Twitter @AlanDersh.