Nonpartisan Commission May Be Better, Although A Special Counsel Was Required

The dramatic clash on CNN between former Harvard law professor Alan Dershowitz, and his former law student, author, and legal commentator Jeffrey Toobin may have occurred in large part because they seem to be debating somewhat different issues, and not disagreeing with each other on a specific issue, suggests public interest law professor John Banzhaf.

Robert Mueller
By Federal Bureau of Investigation [Public domain], via Wikimedia Commons
More specifically, Toobin seemed to be arguing that, given current law, including the existence of the legally-binding Department of Justice special counsel regulations, the appointment of a special counsel was legally required because there was an admitted conflict of interest, and the very low evidentiary threshold for the appointment of a special counsel seemed to be met.

Dershowitz, on the other hand, seemed to be arguing that, in situations such as major public concerns about the possible involvement by Trump’s family and/or associates in improper efforts to affect a presidential election, the best way to handle such concerns would be to establish a nonpartisan commission like that which investigated 911, and is widely used in other countries.

In other words, it may well be that Toobin could agree that, if there were no existing regulations and/or no other precedents, and it were possible to establish a nonpartisan commission, there would be considerable value in doing so, and that it might in some regards be as good or even better than appointing some kind of independent prosecutor.

Similarly, Dershowitz might even agree that, given the legally-binding mandate in the regulations, the appointment of a special counsel was at the very least legally permissible – i.e., if somehow challenged in court, the appointment would not be reversed – and perhaps it was even mandated.

For example, I doubt that Dershowitz would suggest to any of the defendants already indicated by Mueller that they would have a strong legal defense in court by arguing that his appointment was illegal, says Banzhaf, who himself played a role regarding two special prosecutors.

Banzhaf himself has publicly agreed with Toobin that the appointment of the special counsel here was proper if not legally required by the regulations.

On the other hand, he has also publicly agreed with Dershowitz that it is doubtful that a sitting president could be guilty of obstruction of justice simply for exercising his constitutional power to discharge a federal officer under him, especially in the absence of any other wrongdoing such as suborning perjury, destroying and/or falsifying evidence, etc.

Banzhaf, who has taken part in thousands of legal debates on TV and radio, recognizes that debaters, eager to make a point, may not always address issues with the legal clarity required in a courtroom, and can even get carried away due to the heat of the moment, and eagerness not to be seen losing a debate.