The controversy over the selective editing of a voicemail from a former attorney of President Trump in the report by Robert Mueller has added fuel to the arguments against the appointment of special counsels.
The report says attorney John Dowd reached out to Robert Kelner, a lawyer for Michael Flynn, 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 as an attempt by an attorney of the president to obstruct the cooperation of Flynn with the Mueller investigation, and that is also how much of the press covered it.
According to the Mueller report, on November 22, 2017, after Flynn had already withdrawn from the joint defense agreement he had with the president, Dowd left a voicemail for Kelner that said, “I understand your situation, but let me see if I can’t state it in starker terms … it wouldn’t surprise me if you’ve gone on to make a deal with … the government … if there’s information that implicates the president, then we’ve got a national security issue … we need some kind of heads up … just for the sake of protecting all our interests if we can … remember what we’ve always said about the president and his feelings toward Flynn … that still remains.”
The very next day, “Flynn’s attorneys returned the call from the president’s personal counsel to acknowledge receipt of the voicemail” and they restated 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,” the report outlines.
Only after Judge Emmet Sullivan ordered the government to release a full transcript of the voicemail did it become clear that the Mueller report mischaracterized it. The full message said, “Hey, Rob, this is John again. Maybe 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 work with the government, I understand that you can’t join the joint defense, so that’s one thing.”
It continued, “If, on the other hand, we have, there’s information that … implicates the president, then we’ve got a national security issue … I don’t know … some issue we’ve got to deal with, not only for the president, but for the country … then you know, we need some kind of heads up … just for the sake of … protecting all our interests, if we can, without you having to give up any … confidential information … and if it’s the former, then, you know, remember what we’ve always said about the president and his feelings toward Flynn … that still remains, but well, in any event, let me know, and I appreciate your listening and taking the time. Thanks, pal.”
The edited version released by the special counsel 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’ve got a national security issue … some issue we’ve got to deal with, not only for the president, but for the country … without you having to give up any … confidential information.” The Justice Department claims that the full transcript of the voicemail 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 his conversation with Kelner. He notes the irony of Mueller “who kept indicting and prosecuting people for process crimes” but then later “committed a false statement in his own report.”
Dowd accused Mueller of seeking to “smear and damage the reputation of counsel and innocent people.” He said the special counsel “never raised or questioned” him about any of these allegations “despite numerous opportunities.” Dowd, a highly respected and veteran Washington lawyer, is rightly upset. The full transcript shows that he is not trying to obstruct the investigation. Instead, he is respectful of the decision by resigned national security adviser Flynn to withdraw from the former joint defense agreement and does not expect his lawyer to disclose any confidential information. Further, he is not only worried about what cooperation by Flynn means for his own client, the president, but also for the country.
The request by Dowd was not only entirely proper for an attorney of the president but certainly obligatory for any defense attorney seeking critical information necessary to build his defense. By editing the transcript to fit their narrative, the special counsel team distorted the facts. If a lawyer were to provide a quotation in a court submission that omitted key 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 particular 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 counsel lays out in his report.
That is why I argued that the report should have been given to attorneys of President Trump before its release, so they would have a chance to vet it and respond to inaccurate characterizations. The public could then decide which narrative was more credible. I hope this is the last time a special counsel is appointed and a one sided report is issued. It would have been much better to have created an independent commission to look into Russian efforts to influence our 2016 election. Now the latest revelation of the Mueller team exposes once again the structural flaws of the office of the special counsel and why it is time to finally 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.