The Trump Camp’s Strategy with regard to Meuller

If a significant portion of the country believes that the special counsel was unfair, this could help in legal proceedings before judges or jurors.


The Trump team is probably not going to seek to fire Special Counsel Robert Mueller. To do so would be to provoke Trump’s crucial supporters in Congress. Instead, they seem to be seeking to discredit him and his investigation.

This is apparently designed to achieve two possible results: the first is to put pressure on the special prosecutor to lean over backwards to avoid any accusation of bias against Trump and his team. Mueller cares deeply about his reputation for integrity and will want to emerge from this process with that reputation intact. Accordingly, he may err – consciously or unconsciously – in favor of Trump in close cases so that the public will regard him as unbiased and fair-minded.

This is a classic tactic used by lawyers, athletic coaches, business people and others in how they deal with decision makers. The great Red Auerbach, former coach of the Boston Celtics, once told me that when he screams loudly at officials, he generally gets the next close call in his favor. I have heard the same from baseball managers regarding balls and strikes.

This is a somewhat risky strategy in the context of law, because attacking the decision maker could also backfire. Whoever thinks about using this tactic should understand the particular decision maker against whom it is directed. Mueller seems like an appropriate target because of his concern for his reputation for fairness.

Even if this tactic were not to work, the attack on Mueller gives the Trump team some legal weaponry in the event of an indictment or a recommendation for impeachment.

If a significant portion of the country believes that the special counsel was unfair, this could help in legal proceedings before judges or jurors.

So attacking Mueller may appear to be a win-win tactic for the team – certainly a lot better than firing Mueller.

Fortunately for the Trump team, Mueller has played into their hands by his sloppiness in conducting the investigation. He has been incautious with his choice of personnel – too many of them seem biased against Trump, not only by their backgrounds, but by their tweets and messages. When you go after a president, you must be Caesar’s wife – above suspicion or reproach. Mueller seems to be failing the Caesar’s wife test. Moreover, the manner by which he acquired emails and other documents from the Trump transition team may raise some legal questions. The same may be true if he used the questionable dossier against Trump as a basis for securing warrants.

All in all, the Trump team is in a better position continuing to challenge Mueller than trying to get rid of him as the special counsel.

This is not a game, of course. Lives and liberty are at stake, but gamesmanship has always been part of our legal system, for better or worse.

Mueller can improve his situation in several ways. First, he should appoint an ethics expert to advise him – a former judge who is beyond reproach. Names like George Mitchell, Louie Freeh, and Justice David Souter come to mind. That adviser could assure him in going forward there will be no more embarrassing revelation of messages or emails that create the appearance, if not the reality of bias. He must also be more careful in how he obtains evidence. The last thing he should do is give ammunition to defense attorneys to challenge his evidence gathering methods.

In setting out this analysis, I am not taking sides. I am simply sharing my 50 years of experience as a criminal defense lawyer who has seen the criminal justice system up close, warts and all. As James Madison wrote in “Federalist 51”: “Perhaps everyone will agree that if we were all angels, no state would be necessary, and if angels were the governors, they would require neither internal nor external constraints to ensure that they governed justly.” Neither the Trump team nor the Mueller team are angels. They are human beings with human limitations. But an investigation of a president must be as close to angelic as any human endeavor can be. Otherwise the public will not have confidence in the results.

December 21, 2017 | 4 Comments »

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  1. No, one cannot wait for a report that blackwashes everything Trump is and does or didn’t do and isn’t, presents evidence from suspicious sources as credible, will be propagated by fake media with quotes, from “experts” who are in fact extremist liberal globalists, will be lauded world-wide by obscenely rich celebrities that are nothing more than walking script quoters with no independent intelligent thought but have a platform upon which the truth is unwelcome. Get these investigations on Uranium One moving faster, it is not that difficult as there is plenty of evidence available and then arrest these conspirators and charge them with treason. There has been far too much crime at these high levels and giving them time to connive, dig dirt, bribe, publish their lies, ignoring flagrant corruption, treachery and anti-government conspiracies has been going on far too long.

  2. Talk about closing the barn door after the horses have fled. Hire an ethics adviser so, he won’t break the law or do anything unethical in the future?. Not that he has a prayer if he needs to be taught these things — now Johnny, stealing isn’t nice, now, is it? (D’ja hear about that Imam in NJ who’s gonna be “retrained” after calling for genocide against all Jews everywhere? Well, I guess, anything can be forgiven, so long as he didn’t grope somebody 50 years ago.) — He doesn’t have to do anything new. It’s all these old things that are being uncovered, one by one, that are burying him. He’s already discredited himself, all that remains is the process of discovery.

  3. It seems that Dershowitz’ whole blurb ……….of almost nothing that hasn’t been rehashed several times over…is based on the mystic hope about Mueller that “he may” err on Trump’s side…. La Grande Strategie…….Wonderful.

    Of course also, he may “not”…….. So far, Mueller, has been casting wide afield, far beyond his merit-less mandate. Mueller himself was recommended by his friend FBI Director Comey and appointed by Deputy Attorney General Rod Rosenstein, both of whom, it appears, will shortly be under investigation and indictment themselves…

    He has dredged up a couple of very minor, barely justiciable “infractions” by brief Trump campaign members….which alas, do not involve Trump. Dershowitz’ cunning suggestions, based on “may” …… should be ignored. Mueller himself and some of his crew, should be immediately fired and himself indicted and brought to trial. Trump or Pence should go on the air and succinctly explain in a 5 minute message, the reasons.

    After all corruption is illegal and contrary to the best interests of the American People.

  4. G-d bless Alan Dershowitz one of the very few Kennedy Liberals left in the leftist McGovern/Saunders/Warren/Hillary Clinton European style Democratic-Socialist Party. There is no way a reasonable person cannot conclude that the Mueller Commission is biased towards Hillary/Democrats and biased against President Trump/Republicans. The Senate Ethics Committee by contrast has 3 Republicans and 3 Democrats. Burt Roseman MD