OPINION | Dershowitz is wrong about Mueller and Russia

In a recent story in The Hill, Harvard law professor Alan Dershowitz is quoted as claiming that the special counsel investigation by Robert Mueller into possible collusion between the Trump campaign and Russia is a threat to American democracy.

Here are the first two paragraphs of the story verbatim:

“Attorney Alan Dershowitz says special counsel Robert Mueller’s investigation into possible collusion between the Trump campaign and Russia ‘endangers Democracy.’”

{mosads}”The idea of trying to create crimes just because we disagree with [Trump] politically, and target him, really endangers democracy. [It] reminds me of what the head of the KGB said to Stalin: ‘Show me the man, and I will find you the crime,'” Dershowitz told John Catsimatidis on New York’s AM 970 in an interview that aired on Sunday. 

It is hard to find words that I disagree with more strongly and unequivocally than those of Dershowitz quoted above.  

It is the cyberattack against America, orchestrated by a Russian dictator, aimed to elect the American president favored by that Russian dictator, that is the threat to democracy. It is the investigation of that threat by the special counsel, the FBI and the CIA alongside other intelligence and counterintelligence agencies, which is the defense of our democracy.

Professor Dershowitz says Mueller’s investigation reminds him of the KGB under Joseph Stalin. Really? It is Russian President Vladimir Putin, using espionage and cyberwar to attack Hillary Clinton and support Donald Trump that reminds me of the KGB under Stalin. Readers and voters will ultimately decide who is right about our differing views regarding the historical analogies with the KGB.

Let’s be clear: A long list of American intelligence, law enforcement and counterintelligence officers have stated unequivocally that Russia under Putin waged aggressive cyberwar against America in the presidential election of 2016. This crime, not the investigation of this crime, is the real threat against American democracy. 

Let’s be clear about this as well: A long list of American intelligence, counterintelligence and law enforcement leaders have stated their view that Russia under Putin intends to interfere with the American elections in 2018 and 2020. These planned crimes, not the investigation designed to prevent them, is the threat to American democracy.

Finally, let’s be clear about one more thing: A long list of American and Western intelligence, law enforcement and counterintelligence agencies have asserted that Russia under Putin has launched cyberwar and plans to launch future cyberwars against elections in democratic nations that constitute America’s best allies and friends in the world. These crimes, not the investigations designed to expose and prevent them, is the threat against American and Western democracy.

Professor Dershowitz charges that the special counsel office led by Mueller is trying to “create crimes” (his words) because of political opposition to Trump. The special counsel is not trying to create crimes but to investigate crimes that have potentially already happened and future crimes that Russia plans to carry out and to determine whether or not there was collusion implicating the Trump campaign. 

Mueller is investigating whether or not there was obstruction of justice to illegally impede this investigation or if there were financial crimes committed by Trump associates that involve Russian or other illicit foreign money.

Notice I carefully suggest that Mueller and his special counsel team are trying to ascertain “whether or not” there were crimes committed by Trump associates that rise to the level of seeking a prosecution. Neither I, nor Mueller, nor the special counsel team, the FBI, the CIA or the congressional intelligence committees investigating this scandal want to create crimes that did not happen. 

We are all in search of evidence and facts about whether or not crimes were committed. If and only if it is proven they were, we want to know who should be prosecuted under the law for committing those crimes.

Many days, on many weeks, for many months, have brought new headlines about deep and extensive ties between persons associated with Trump and persons associated with Putin.

The special counsel, and the intelligence committees of the Senate and House, will continue to investigate these ties with Russia. They will ultimately issue detailed and fact-laden reports that may or may not be followed by full exoneration of Trump and his associates, criminal prosecutions, congressional resolutions of censure or impeachment of the president. It is the evidence that will determine innocence or guilt and prosecution or exoneration.

Professor Dershowitz is an eminent authority on the law. His views deserve to be considered, and rebutted. Our president should be chosen by Americans, not by Russians. The fact that Russia launched an aggressive attack against our American election is not fake news or a created crime. It was a real crime that dramatizes the real danger to our democracy.

Brent Budowsky was an aide to former Sen. Lloyd Bentsen (D-Texas) and Rep. Bill Alexander (D-Ark.), then-chief deputy majority whip of the House. He holds an LL.M. in international financial law from the London School of Economics. He can be read on The Hill’s Contributors blog and reached atbrentbbi@webtv.net.

The views expressed by contributors are their own and not the views of The Hill.