A presentment is a foul blow. It wins the importance of a judicial document; yet it lacks its principal attributes the right to answer and to appeal. It accuses, but furnishes no forum for denial. No one knows upon what evidence the findings are based. An indictment may be challenged even defeated. The presentment is immune. It is like the “hit and run” motorist. Before application can be made to suppress it, it is the subject of public gossip. The damage is done.
The injury it may unjustly inflict may never be healed.
United States v. Briggs, 514 F.2d 794, 803 (5th Cir. 1975)
Because of the potential due process violations, federal prosecutors are properly cautioned against identifying people as unindicted co-conspirators. As the US Attorney’s Office Manual states:
In the absence of some significant justification, federal prosecutors generally should not identify unindicted co-conspirators in conspiracy indictments. The practice of naming individuals as unindicted co-conspirators in an indictment charging a criminal conspiracy has been severely criticized in United States v. Briggs, 514 F.2d 794 (5th Cir. 1975).
9-11.130-Limitation on Naming Persons as Unindicted Co-Conspirators
In the rush to weaponize the law against a president they despise, too many Democrats and liberals are becoming incautious about improperly throwing around the loaded accusation of unindicted co-conspirator against President Trump. Unless and until Trump is named or identified in a grand jury indictment as an unindicted co-conspirator, he should not be so characterized.
Those who misuse the term should stop. And when they persist, they should be corrected. Trump is simply not an indicted co-conspirator, and calling him one does not make it so.
Mueller Report and Trump Response Should Be Issued Simultaneously14
As Special Counsel Robert Mueller moves toward completing his report, it is important to understand the legal status of such a report and how it should be released and evaluated under the rules governing special counsel.
First and foremost, it must be understood that because it is the report of a prosecutor, it will inevitably be one-sided; all prosecutorial investigations, by their nature, are one-sided. Prosecutors pick the witnesses they will present to the grand jury. Defense lawyers are not allowed to appear with their clients, nor are they allowed to present witnesses who might contradict the prosecutor’s case. The prosecutors need not provide exculpatory evidence to the grand jury even if they are aware of it, nor need they interview witnesses who might contradict their narrative. That is why it is generally considered unfair for prosecutors to issue “reports.” Normally prosecutors either announce that the subject has been indicted or not, without further comment.
Special counsel and special prosecutors have been allowed more leeway in issuing reports, but this leeway is constrained by rules. The general public is often unaware of the one-sided nature of these reports. Because they are issued by a “special counsel,” they carry, in the minds of many people, special weight—weight to which they are not legally, morally, or logically entitled. That is why it is imperative in a high-stakes case like this one that the president’s legal team be allowed to issue its own report presenting its side of the case. Basic fairness requires this, and the American public is entitled to judge for itself which side is more persuasive.
There should never be a presumption in favor of crediting the one-sided reports prepared by prosecutors. They have no higher status than an indictment, and remember that even an indictment handed down by a grand jury is not allowed to be considered as evidence of guilt. It is only a charging instrument. A report by a special counsel is as one-sided as an indictment and should be given no greater weight. Like an indictment, it should not undercut the presumption of innocence.
That is why it is so important for the president’s legal team to be accorded an opportunity to present its own report, based on its own investigation and its own evidence and its own knowledge of the facts. In order to make the rebuttal presentation fair, the following procedure should be followed:
The Mueller Report should be presented to the Attorney General (or his designee), as required by the rules. A copy should also be provided to the president’s legal team. The Attorney General should not allow the Special Counsel’s report to be made public (and should take care that it’s not leaked) until the president’s team has had a chance to review and respond to it. The Attorney General should then issue both reports, so that the media and the general public have a chance to assess them in tandem.
There is no good reason—in law, logic or morality—why the special counsel’s report should be issued before the rebuttal is issued. Everybody benefits when both reports are issued simultaneously.
We can anticipate that the Mueller report, if unrebutted, will probably be quite damaging to the president and his associates. No reasonable person should expect an objective, balanced, nuanced report. That is not in the nature of what comes out of a one-sided prosecutorial investigation. I have used the word “devastating” to describe what the President should expect and what his team should be prepared to respond to. Virtually all reports by special counsel and prosecutors—from Kenneth Starr’s report on Clinton to Lawrence Walsh’s report on Iran-Contra—have been devastating when issued without any rebuttal. No less should be expected from Mueller’s report. This doesn’t mean that the report will survive a well-documented rebuttal. All it means that standing alone, absent a rebuttal, its impact should not be underestimated.
I don’t believe that the Mueller report will actually charge President Trump with any crimes, since collusion—even if Mueller were to conclude that it occurred—is simply not a crime. Nor can constitutionally authorized actions of a president—such as hiring, pardoning, or tweeting—be turned into crimes by stretching elastic statutes. What Mueller will do, if he is smart, is to simply lay out all the facts and try to connect them in the most incriminating way possible. He will try to create a mosaic that makes the president look guilty of political sins, if not federal crimes.
It is important to remember that the witnesses whose information serves as the basis of a prosecutorial report have not been subject to cross-examination. Their accounts may not be entirely credible, but the report can still rely on them. Because the report—if it does not charge indictable crimes—will never be subject to the truth-testing mechanisms of an adversarial trial, its conclusions should not be accepted at face value.
It is not difficult for a prosecutor to construct an incriminating mosaic if there is no contemporaneous rebuttal. The task becomes much more difficult if both sides are heard simultaneously.
The president’s lawyer should file a request now with the Justice Department demanding an opportunity to review and respond to the Mueller Report before it is released to the public or to Congress. And the Justice Department should grant that reasonable request.*
*For an analogous situation in Israel, see https://www.haaretz.com/amp/opinion/voters-not-the-police-or-the-courts-should-decide-netanyahu-s-future-1.6718677
On Tolerance, Hyper-partisanship, and our Deteriorating Public Discourse
Democracy necessitates dissent and a fair, tolerant, critical public discourse—it’s what America was built upon. But today, dissent is silenced—even criminalized—in favor of confirmation bias, and politics is being pushed to the extremes of the political spectrum. As always, the American people are the real losers.
It is this extremism on both sides, rather than a single politician or president or pundit, that is the greatest underlying threat for our democracy. America has always thrived in the center; we need a mutual disarmament agreement to return to that centrism. I make that case in the columns that follow.
Maxine Waters Does Not Speak For Democrats or Liberals15
Congresswoman Maxine Waters (D-CA) recently told her supporters to hound President Trump’s cabinet members wherever they find them: “They’re not going to be able to go to a restaurant, they’re not going to be able to stop at a gas station,
they’re not going to be able to shop at a department store. The people are going to turn on them, they’re going to protest, they’re going to absolutely harass them.”
Waters does not speak for all Democrats or liberals. Nor do those who threw Sarah Huckabee Sanders out of the Red Hen restaurant. Neither do those who have harassed other members of the Trump administration. But these rude extremists are a symptom of the times. The divisions have gotten so bad that many on both sides refuse to speak or listen to those on the other side. Either you are for Trump or against him, and that is all some people need to know to make judgments about you.
I know this because I have experienced this firsthand on Martha’s Vineyard. I am not a Trump supporter nor am I member of the Trump administration. I have strongly and publicly opposed his immigration policies, ranging from the travel ban that was upheld by the Supreme Court to the zero-tolerance policy that led to the separation of parents and children at the border. I oppose other Republican policies as well. I voted for, and contributed handsomely to, Hillary Clinton.
But I have defended Trump’s civil liberties, along with those of all Americans, just as I would have defended Hillary Clinton’s civil liberties had she been elected and subjected to efforts of impeachment or prosecution. This book could just as easily have been the case against impeaching Hillary Clinton; indeed, I wrote such a book about Bill Clinton, Sexual McCarthyism: Clinton, Starr, and the Emerging Constitutional Crisis. I am opposed to appointing a Special Counsel to investigate Hillary Clinton’s campaign, and I was against it for Trump. I am a liberal Democrat in politics, but a neutral civil libertarian when it comes to the Constitution.
But that is not good enough for some of my old friends on Martha’s Vineyard. For them, it is enough that what I have said about the Constitution might help Trump. So they are shunning me and trying to ban me from their social life on Martha’s Vineyard. One of them, an academic at a distinguished university, has told people that he would not attend any dinner or party to which I was invited. He and others have demanded “trigger warnings” so that they can be assured of having “safe spaces” in which they will not encounter me or my ideas. Others have said they will discontinue contributions to organizations that sponsor my talks.
This is all familiar to me because I lived through McCarthyism in the 1950s, when lawyers who represented alleged communists on civil libertarian grounds were shunned. Some of these lawyers and victims of McCarthyism lived on Martha’s Vineyard. I never thought I would see McCarthyism come to Martha’s Vineyard, but I have. I wonder if the professor who refuses to listen to anything I have to say also treats his students similarly. Would he listen to a student who actively supported Trump? What about one who simply supported his civil liberties?
These childish efforts to shun me because I refused to change my position on civil liberties that I have kept for half a century discourages vibrant debate and may dissuade other civil libertarians from applying their neutral principles to a president of whom they disapprove. But one good thing is that being shunned by some “old friends” on Martha’s Vineyard has taught me who my real friends are and who my fair-weather friends were. From a personal point of view, I could not care less about being shunned by people whose views regarding dialogue I do not respect.
But this is not about me, nor is it about Sarah Huckabee Sanders, or Stephen Miller, or Betsy DeVos. This is about the United States of America. It is about our growing intolerance toward opposing views. President Trump certainly bears some of the responsibility for this divisiveness, but Maxine Waters and those who advocate harassing political opponents share much of the responsibility as well. They are both the symptom and the cause of the divisiveness in this country.
I will not change my views as a result of these attempts to ostracize me, but there are some who may remain silent for fear of being shunned. Silence is not my style. Cowardice is not my philosophy. I intend to speak up when I disagree with Republicans, and I intend to speak up when I disagree with Democrats. Right now I am speaking up in disagreement with Maxine Waters. She—like those who shun me on Martha’s Vineyard—is part of the problem rather than the solution.
The Hard-Left’s Desire to Live in a Political Silo When It Comes to Trump16
We live in a world of echo chambers and political silos, in which more and more Americans are reading, watching, and listening only to “facts” and “news” that fit into their preexisting worldview. Truth is no longer the end result of a complex process of learning differing perspectives, arguing about them, keeping an open mind, changing one’s mind, and finally arriving at tentative conclusions subject to revision based on changing information. Truth, with a capital T, has become a rigid, fixed dogma, not subject to challenge by untruth. This is especially the case with regard to political truth.
For too many Americans, the political marketplace of ideas should sell only one product, so consumers do not become confused by conflicting ideas. It is almost as if people are swallowing truth pills that deliver the absolute truth into their minds without the need for a learning or truthing process. This is the beginning of a dangerous road to totalitarianism—if not in governance, then in thinking.
Both sides of the political spectrum are increasingly guilty of substituting dogma for discussion. President Trump, with his bully pulpit, surely bears the most responsibility. But the hard-left, with its tactic of harassing and demonizing its political opponents, shares the blame. Neither extreme wants to talk with, or learn from, each other. We are a poorer nation as a result of the death, or at least dearth, of dialogue.
As a liberal academic, my focus is on a new breed of left-wing professors who are criticizing the need for a fully open marketplace of ideas both on and off the campus. They do not see the virtue of wrongheaded views being expressed, especially if they are offensive to those with whom these professors identify. Some academics prefer a world in which each American receives only news that supports his or her preexisting worldview. If this sounds a bit like Fox and MSNBC, that is because this is the direction in which we are going.
Some academics believe that, in the near future, we will be able to swallow a pill before we go to sleep and wake up in the morning speaking foreign languages fluently, without going through the difficult process of learning. I imagine that the next step would be a physics pill, then a history pill, then a politics pill, and finally a truth pill. There will be no alternative pills or antidotes. We would all know everything from pills prescribed by a Dr. Strangelove. Or will it be Dr. Trump who is prescribing the pill?
I have experienced this desire for a singular truth in my defense of Trump’s civil liberties and constitutional rights. Although I am a liberal Democrat and a strong supporter of Hillary Clinton, I have made the case against Trump’s impeachment and prosecution.
I have controversial views regarding these matters, which I have expressed in numerous articles, media appearances, and books, including this one. I’m the first to admit I may be wrong about some of what I’m arguing. That’s why I want to hear differing points of view. I have been persuaded by dialogue to change and refine some of my positions. I welcome more dialogue.
I end the first section this book with the following challenge:
I hope this will provoke debate, not name-calling. The issues I raise are serious and their discussion is essential to democratic discourse. So please respond to my positions. Disagree with me, propose better arguments, and defeat me, if you can, in the marketplace of ideas. So let the debate continue. I am ready to respond to my critics in print, in the media, and in the courts of public opinion. But let’s keep the debate civil and on the merits.
Some radical Trump opponents prefer to cut off dialogue. They see no other side to the issue. Indeed they accuse me—by defending the civil liberties of all Americans, including Trump—of becoming complicit with tyranny in the same way “well-known 20th-century dictators enjoyed the support of public intellectuals.”17 They have urged others to refuse to interact
with me intellectually, politically, and personally. Most have refused, including some of my most zealous critics who persist in arguing with me. We continue to learn from each other.
I have likened these efforts to ostracize me to what lawyers who represented accused communists during the McCarthy era went through. These lawyers, too, were ostracized, and their defense of the civil liberties of accused communists was equated with support of communism.
I will continue to defend the civil liberties of all Americans, regardless of party or position. Persuade me why this is wrong by rational argument! I will never subscribe to any media that present only one worldview—even if it is mine. Nor would I take a truth pill if one ever became available. In a democracy, the process of learning is at least as important as the end result.
Zealous Dems Fail to Hear Out Trump’s Constitutional Rights17
Since The Case Against Impeaching Trump has been published, the efforts to silence me have increased. When National Public Radio announced that I would be interviewed about the book, listeners wrote to demand that I not be given a forum on which to express my views. CNN and radio host Michael Smerconish received similar complaints from viewers, as did bookstores featuring the book.
The Case Against the Democratic House Impeaching Trump Page 22