In an op-ed for The Hill published Friday, Harvard Law Professor Alan Dershowitz takes a closer look at the special counsel's problematic selective editing of a voicemail message from President Trump’s former attorney John Dowd which, as Dershowitz puts it, has "added fuel to the arguments against the appointment of special counsels." Robert Mueller's team's decision to "distort" the message, the esteemed legal analyst argues, is more evidence that it's time to "abolish" the special counsel.
The Mueller report says that after Gen. Michael Flynn withdrew from the joint defense agreement with President Trump, Dowd left a voicemail message for Flynn's attorney, Robert Kelner, asking for a "heads up" if "there's information that implicates the president."
"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," Dershowitz notes.
Here's the passage that includes the selectively edited transcript of the voicemail provided in the Mueller report, as highlighted by Dershowitz:
On November 22, 2017, 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)
While the report makes Dowd's message sound rather sinister, the full transcript reveals that Mueller's team distorted what the attorney actually said through key omissions. Here's the full, unedited message from Dowd, where the attorney stresses that he is not asking for "any confidential information," begins by expressing sympathy for Flynn's decision not to join the joint defense, and cites the country's interests, not just the president's, as the reason the information matters:
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.
Citing Dowd's allegation that Mueller is attempting to "smear and damage" not only him but others and assertion that the special counsel never raised any questions about these allegations with Trump's legal team before releasing the report, Dershowitz writes that Dowd is "rightly upset."
"When read in full, the transcript shows that he is not trying to obstruct the probe," argues Dershowitz. "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."
With the release of the full transcript, it's clear that Dowd's request of Kelner was not only "entirely proper" but "obligatory" for any competent defense attorney, Dershowitz argues. Read his full op-ed here.