The controversy over the selective editing of a voicemail message from President TrumpDonald John TrumpO’Rourke hammers Trump on tariffs: The damage ‘has already been done’ O’Rourke hammers Trump on tariffs: The damage ‘has already been done’ Schumer mocks Trump: ‘I’m sure we won’t be hearing any more’ about illegal immigration MORE’s former attorney in the report by Robert MuellerRobert (Bob) Swan MuellerSchiff says Intel panel will hold ‘series’ of hearings on Mueller report Schiff says Intel panel will hold ‘series’ of hearings on Mueller report Key House panel faces pivotal week on Trump MORE has added fuel to the arguments against the appointment of special counsels.
The Mueller report says that attorney John Dowd reached out to Robert Kelner, Gen. Michael Flynn’s lawyer, after Flynn withdrew from a joint defense agreement with the Trump legal team and asked Kelner to give him a “heads up.” The report characterized the voicemail message as an attempt by the president’s counsel to obstruct Flynn’s cooperation with the Mueller probe, and that’s also how much of the press reported on it.
Here’s what the report said: “On November 22, 2017” — after Flynn withdrew from the joint defense agreement he had with President Trump — “… the President’s personal counsel left a voicemail for Flynn’s counsel that said: ‘I understand your situation, but let me see if I can’t state it in starker terms … [I]t wouldn’t surprise me if you’ve gone on to make a deal with … the government … [I]f … there’s information that implicates the President, then we’ve got a national security issue … so, you know … we need some kind of heads up. Umn, just for the sake of protecting all our interests if we can … [R]emember what we’ve always said about the President and his feelings toward Flynn and, that still remains …”
“On November 23, 2017, Flynn’s attorneys returned the call from the President’s personal counsel to acknowledge receipt of the voicemail. Flynn’s attorney reiterated that they were no longer in a position to share information under any sort of privilege. According to Flynn’s attorneys, the President’s personal counsel was indignant and vocal in his disagreement. The President’s personal counsel said that he interpreted what they said to him as a reflection of Flynn’s hostility towards the President and that he planned to inform his client of that interpretation.” (Mueller Report, Vol. 2, p. 121-122)
Only after Judge Emmet Sullivan ordered the government to release a full transcript of the voicemail message did it become clear that the report mischaracterized Dowd’s voicemail message. The full message, that does not appear in the report, was as follows: “Hey, Rob, uhm, this is John again. Uh, maybe, I-I-I-’m-I’m sympathetic; I understand your situation, but let me see if I can’t … state it in … starker terms. If you have … and it wouldn’t surprise me if you’ve gone on to make a deal with, and, uh, work with the government, uh … I understand that you can’t join the joint defense; so that’s one thing. If, on the other hand, we have, there’s information that … implicates the president, then we’ve got a national security issue, or maybe a national security issue, I don’t know … some issue, we got to — we got to deal with, not only for the president, but for the country. So … uh … you know, then, then, you know, we need some kind of heads up. Um, just for the sake of … protecting all our interests, if we can, without you having to give up any … confidential information. So, uhm, and if it’s the former, then, you know, remember what we’ve always said about the President and his feelings toward Flynn and, that still remains, but — Well, in any event, uhm, let me know, and, uh, I appreciate your listening and taking the time. Thanks, pal.”
The edited version released by the special prosecutor omits the following important words: “I’m sympathetic … I understand that you can’t join the joint defense; so that’s one thing. If, on the other hand, we have maybe a national security issue … some issue, we got to — we got to deal with, not only for the President, but for the country … without you having to give up any … confidential information.”
The Department of Justice claims that the full transcript is consistent with the overall incident. Dowd disagrees, pointing out that by “taking out half my words, they changed the tenor and the contents of that conversation with Robert Kelner… Isn’t it ironic that this man who kept indicting and prosecuting people for process crimes committed a false statement in his own report.”
Dowd has accused Mueller of seeking to “smear and damage the reputation of counsel and innocent people.” He stated that the special counsel “never raised or questioned the president’s counsel about these allegations despite numerous opportunities to do so.” Dowd, a highly respected and veteran D.C. lawyer, is rightly upset. When read in full, the transcript shows that he is not trying to obstruct the probe. To the contrary, he is respectful of resigned national security adviser Flynn’s decision to withdraw from the joint defense agreement and does not expect Flynn’s attorney, Kelner, to disclose confidential information. Furthermore, he is not only worried about what Flynn’s cooperation means for his client, the president, but also for the country.
Dowd’s request was not only entirely proper for a president’s counsel to make, but obligatory for any defense attorney properly seeking information necessary to his defense. By editing the transcript to fit their narrative, the Mueller team distorted the facts. If an ordinary lawyer or prosecutor were to provide a quotation in a court submission that omitted words that undercut his argument, he would be subject to discipline.
The public must be told who approved the decision to remove important words from the Dowd quotation, and for what reason. Did Mueller approve the cuts? Did the person who made the cuts inform his superiors precisely what he was omitting and why? Even more than ordinary prosecutors, Mueller and his team have a special obligation not to engage in this kind of selective editing. Their report is, by its nature, one-sided. The public needs to trust what the special prosecutor says in his report.
That’s why I argued, before the Mueller report was released, that it should be given to President Trump’s lawyers, so they would have an opportunity to vet it and respond to unfair or inaccurate characterizations. The public could then decide which narrative was more credible.
I hope this is the last time that a special prosecutor is appointed and a one-sided report is issued. It would have been much better to have created a nonpartisan, independent expert commission to look into Russian efforts to influence our 2016 presidential election. The latest revelation of the Mueller team exposes once again the structural flaws of the special prosecutor’s office and why it is time to abolish it.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. His new book is “The Case Against the Democratic House Impeaching Trump.” You can follow him on Twitter @AlanDersh.