Jus­tice from the Alice-in-Won­der­land School of Law

The Washington Times Daily - - COMMENTARY - BY WES­LEY PRUDEN Wes­ley Pruden is ed­i­tor in chief emer­i­tus of The Times.

Fair is fair, but spe­cial pros­e­cu­tors work to their own fair­ness code, that it’s im­por­tant to be fairer to some than to oth­ers. Some­times you don’t have to be fair at all. Spe­cial pros­e­cu­tors study at the Lewis Car­roll School of Law, tu­tored in Won­der­land by the wise old Pro­fes­sor Alice, where they are taught the Wash­ing­ton le­gal prin­ci­ple of “ver­dict now, ev­i­dence later.”

These rail­road jobs are not nec­es­sar­ily the spe­cial pros­e­cu­tor’s fault. Hir­ing a spe­cial pros­e­cu­tor, much like hon­est cit­i­zens send­ing off to Cheyenne for a hired gun to get rid of the crooked sher­iff, is done with a very spe­cific goal in mind. The spe­cial pros­e­cu­tor is ex­pected to nail the tar­get, usu­ally a pres­i­dent. His rep­u­ta­tion is tainted if he can’t do the job (though he does get to keep his nice fee). Ken­neth Starr, the spe­cial pros­e­cu­tor hired to bring back the scalp of Bill Clin­ton (if not nec­es­sar­ily his in­crim­i­nat­ing un­der­wear), was not orig­i­nally hired to pur­sue Mon­ica Lewin­sky, though that’s where the pur­suit led, and Mr. Starr’s rep­u­ta­tion suf­fered when the im­peach­ment hit a dead end and Bubba sur­vived yet an­other ad­ven­ture. Mr. Starr’s midlife cri­sis led him to change ca­reers and he left the law and went on to pre­side as pres­i­dent over the dis­grace of Bay­lor Univer­sity and a foot­ball fac­tory gone bad.

Some­times a spe­cial pros­e­cu­tor gets his quarry and his own rep­u­ta­tion still suf­fers. There are rules, not al­ways ob­served. Pa­trick Fitzger­ald was hired to put Lewis “Scooter” Libby, the chief of staff for Vice Pres­i­dent Dick Cheney, in the fed­eral pokey for his imag­ined role in the un­mask­ing of a CIA agent, which is for good rea­son a fed­eral felony. It turned out later that Mr. Libby was not the man who iden­ti­fied Va­lerie Plame, who was ac­tu­ally known by one and all in cer­tain Wash­ing­ton so­cial cir­cles as a celebrity CIA agent. That dis­tinc­tion be­longed to one Richard Ar­mitage, a deputy sec­re­tary of state, and Pros­e­cu­tor Fitzger­ald knew it was Mr. Ar­mitage, and pro­ceeded against the Scooter, any­way.

By us­ing fake ev­i­dence to in­tim­i­date Mr. Libby, the pros­e­cu­tor could hope to get the ev­i­dence to bag the vice pres­i­dent. That’s how the law some­times works in Wash­ing­ton, which is no place for an old man, or a naive young one, ei­ther.

Robert Mueller, the for­mer di­rec­tor of the FBI and the man ex­pected to bag Don­ald Trump, is a man known (by other lawyers) for his hon­esty, pro­bity, rec­ti­tude, ethics and lots of other good stuff you don’t al­ways see among the lawyers in a court­room. He brings a rep­u­ta­tion of such blind­ing punc­tilio as to put ev­ery­one else in the dark.

But he, too, is ex­pected by the Demo­cratic me­dia and po­lit­i­cal es­tab­lish­ment to bag his quarry — those who among Trump cam­paign as­so­ciates might have col­luded in sell­ing out the coun­try to the Rus­sians. If all goes well, that in­cludes the pres­i­dent him­self. But if Mr. Mueller falls prey to am­bi­tion (not un­known in his trade), he has al­ready brought in from Cheyenne sev­eral tal­ented gun­fight­ers.

They have im­pec­ca­ble Demo­cratic cre­den­tials, and with the im­pri­matur of sev­eral Demo­cratic cam­paigns.

An­drew Weiss­man con­trib­uted $2,000 to the Democrats in 2006 and $2,300 to Barack Obama in 2008. James Quar­les con­trib­uted $3,300 to Mr. Obama in 2008; $1,500 to Sen. Charles Schumer, the leader of the Democrats in the U.S. Se­nate, in 2015, and $2,700 to Hil­lary Clin­ton last year. Jen­nie Rhee con­trib­uted $2,300 to Mr. Obama in 2008, and $2,700 to Hil­lary Clin­ton in both 2015 and 2016. Noth­ing il­le­gal or un­eth­i­cal about any of that but it sug­gests ro­mance in the air, whether re­quited or not. Some peo­ple might even smell col­lu­sion in the works (but we’ll al­ways have cyn­ics among us).

Some lawyers have no­ticed this. Alan Der­showitz, the dis­tin­guished le­gal scholar at Har­vard Law School, thinks this sug­gests at a min­i­mum that the Mueller in­ves­ti­ga­tion is al­ready “too po­lit­i­cal.”

“In a par­ti­san at­mos­phere like this,” he told in­ter­view­ers at Fox News, “you have to be so care­ful not to give the other side the abil­ity to claim prej­u­dice. And I think they have given the other side the abil­ity to claim prej­u­dice. This is be­com­ing very po­lit­i­cal, when you have the Jus­tice De­part­ment it­self be­ing on both sides, pros­e­cut­ing the pres­i­dent, pos­si­bly, and also serv­ing as de­fense wit­nesses for the pres­i­dent. This is just be­com­ing too po­lit­i­cal on both sides.”

He ob­served that some Repub­li­cans now want to pros­e­cute Loretta Lynch, who was Mr. Obama’s at­tor­ney gen­eral and who some­times demon­strated odd judg­ment in stay­ing on the straight and nar­row.

“We have to stop crim­i­nal­iz­ing po­lit­i­cal dif­fer­ences,” Mr. Der­showitz says. “The crim­i­nal law should be re­served for ob­vi­ous vi­o­la­tions of the crim­i­nal law that ex­ists, not for mak­ing po­lit­i­cal points against your po­lit­i­cal en­e­mies on both sides.”

Just so. But pros­e­cu­tors are not re­quired to be fair. Just to get their man.


Alan Der­showitz

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