Verdict first, evidence to follow?

Alan Dershowitz is a prominent legal scholar and former Harvard professor of law renowned for his notable defence of both the State of Israel and OJ Simpson. He is also a long-standing supporter of the Democratic party. His views have been firmly situated on the liberal side of politics. Now that side has turned viciously upon him.

As he explains here, he had expressed grave reservations about the decision by Special Counsel Robert Mueller to empanel a 23-strong grand jury in the District of Columbia in his probe into possible Russian collusion with the Trump presidential campaign.

Empanelling it in DC, said Dershowitz, would give the prosecutor “a tremendous tactical advantage” because DC was “always solidly Democratic and has an ethnic and racial composition that might be very unfavourable to the Trump administration”.

As a result, Dershowitz has been attacked for “racism” by allegedly saying black voters wouldn’t give Trump a fair trial, and even – to his horror – as a “Trump apologist”.

Ever since the insurrectionists of the French Revolution starting guillotining each other, the left has always ended up attacking its own. Alan Dershowitz can – and does – fight his own battles.

A far deeper problem, however, is the grand jury itself. Regardless of the object of its attentions, the American grand jury is intrinsically a profoundly unjust and oppressive institution.

A grand jury is a group of citizens who are charged with deciding whether or not there is reasonable or probable cause to believe someone has committed a crime. It essentially provides a gatekeeping function to determine if there is enough evidence for an indictment.

But how can grand jurors decide such a thing? They are ordinary people, not lawyers. How can they know whether the evidence is sufficiently robust to be admitted to a court? They are not even presented with any counter-arguments since the defence has no representation before a grand jury. The jurors are therefore as putty in the hands of the prosecutor.

And the worst thing of all is that this all takes place in secret. Unlike the court process itself, what happens before a grand jury is totally hidden from sight. The general public therefore has no way of knowing whether the jurors’ decision to indict is reasonable or not.

This is why the former New York judge Sol Wachtler so memorably observed in 1985 that district attorneys had so much influence that they could get grand juries to “indict a ham sandwich” (remarkably, he himself became the pastrami in the sandwich when he was indicted by a grand jury on charges of extortion and blackmail against an ex-lover, to which he subsequently pleaded guilty).

Robert Mueller’s empanelment of the DC grand jury is but the latest concern about his Russia probe which increasingly seems to be out of control as a politically-motivated witch-hunt. Although he was tasked with inquiring into possible Russian collusion with the Trump presidential campaign, he has now extended that. Having unearthed no evidence of any such collusion, he has apparently extended his inquiry to cover the business dealings of Trump and his associates going back many years.

The terms of Mueller’s remit, as provided here by the Legal Insurrection blog, are as follows:

“The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including: (i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a).”

Presumably Mueller would argue that the business dealings of team Trump are “matters that arose” from his investigation so far. Well maybe; but this looks awfully like a fishing expedition – trying to find a crime to fit a person – which is an abuse of legal process.

Put that together with Mueller’s expansion of his team by mostly Democrat-supporting officials, his apparent conflict of interest over his friendship with former FBI Director James Comey who himself should be under investigation, and his previous form in allowing prosecutorial wilfulness interfere with constitutional propriety (as observed here by the Wall Street Journal) and this all looks more and more as if Mueller is the legal hit-man for the attempted rolling coup now under way against the democratically-elected president of the United States – with Donald J Trump now the steak in the grand jury sandwich.