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Stop Calling Everyone a 'Racist': Civil Rights Attorney Calls Out 'Dangerous' New Trend

Stop Calling Everyone a 'Racist': Civil Rights Attorney Calls Out 'Dangerous' New Trend Read Transcript

Well with us now is a brilliant constitutional


He is the Felix Frankfurter Professor

of Law, Emeritus at Harvard Law School.

Professor, you have a new book out called "Trumped Up.

Criminalizing Politics is Dangerous."

Well, why is that?

It's extremely dangerous to argue

that every time a political figure you disagree with

does something that you disagree with, that it's a crime.

They've added something new to their arsenal.

Now if they disagree with you, they call you a racist.

So they use the term crime, they use the term racist,

as weapons to try to silence their opponents.

I was called a racist by Congresswoman Maxine Waters

and others, because I made the observation

that no criminal lawyer would disagree with,

that the prosecutor has obtained a tactical advantage by moving

the case from Virginia, which is a swing state,

to the District of Columbia, which is 95% democratic.

Nobody would disagree with that point,

but suddenly I'm a racist.

Suddenly Donald Trump is a criminal,

because you disagree with his political points of view.

This is very dangerous.

It distorts terms like criminal and racist,

and makes them less powerful, because it's crying wolf.

If you call everybody a racist, no one is a racist.

If you call everybody a criminal, no one's a criminal.

And it's a very serious infringement on civil liberties

to be arguing politics by throwing around

terms like crime and racism.

You made a very cogent statement a year or so ago,

that the President of the United States cannot obstruct justice

if he talks to his attorney general or the FBI head

to discuss a case.

Would you elaborate on that please?

Well, my precedent for that is no one

other than Thomas Jefferson--

Thomas Jefferson insisted that his attorney general

prosecute Aaron Burr.

Every president in modern history

has had contact with the Justice Department.

President is after all head of the unitary executive.

The Justice Department works for the president as part

of the executive branch.

And the president can make the decision who to prosecute

and who not to prosecute.

It's not the right way to handle things.

I would not urge the president to do that,

but there's nothing illegal about a president

instructing the Justice Department who to prosecute

and who not to prosecute.

There's long historical precedent.

That's another example of people taking things

they disagree with and suddenly saying oh, that's

an obstruction of justice, that's a crime.

It's just historical nonsense.

Comey goes before Congress testimony, says

I think there was obstruction of justice

and therefore, we ought to call for a special prosecutor.

The next thing you know his close friend Mueller

is named special prosecutor.

But you say that there was no crime,

there was no obstruction of justice in that discussion

between him and the president.

Is that right?

I think that's absolutely correct.

But what Comey did was much worse.

He didn't just go in front of Congress

or go in front of the media, he leaked the material

and laundered it through a law professor friend.

And when the former head of the FBI

is now doing the leaking, instead

of stopping the leaking, something wrong

is happening in this country.

He set a terrible, terrible precedent,

and should never have been involved

in leaking material and laundering it

through a law professor.

That's just not the way the FBI should operate.

Rosenstein said, well, we really

need to limit what Mueller is going to do,

but how is that going to be done,

he's got like a fishing license.

And you also mentioned the fact that he's moved the grand jury

from Virginia to Washington, which is primarily democratic,

and he's loaded up his staff with pro Hillary Clinton


Isn't that a bit of a conflict?

Well, till recently we could disagree about whether or not

people on his staff can be fair, whether District of Columbia

can afford a fair trial.

All I said was that he got a tactical advantage by moving it

from Virginia, which is a swing state,

to the District of Columbia, which

is overwhelmingly Democratic.

I don't think there's a criminal defense lawyer in the world who

would disagree with that statement,

and yet it resulted in me being called a racist.

And on CNBC last night, I was asked by the commentator have

I-- am I being paid by Donald Trump,

and I'm called a Trump lackey.

I supported Hillary Clinton.

I'm a liberal Democrat.

I'm not doing this for Donald Trump.

I'm doing this for all Americans as a civil libertarian.

If Hillary Clinton had gotten elected

and people were screaming lock her up

and trying to create crimes to charge her with,

I would be saying the same thing.

And the people who today hate me, would love me,

and the people who today love me, would hate me.

That's what it means to be a civil libertarian.

Sometimes what you say helps one side,

sometimes it helps the other.

That's not the reason I'm doing it.

I'm doing it to help the civil liberties of all Americans

who suffer when we turn political differences

into crime.

And that's the thesis of my book, "Trumped Up.

Why the Criminalization of Politics

Endangers American Democracy."

I want to ask you another question about the limits

under the rules of the Justice Department,

a special prosecutor is supposed to investigate specific crimes.

There has to be a crime.

And what is the crime and is he restricted to investigations

of that matter or can he just go on a fishing expedition

and help himself to where he can find anything?

Well, we know what happened with Bill Clinton.

They started out investigating financial corruption

in Whitewater, found nothing, and ended up

investigating him for Monica Lewinsky for a sex act.

There are very, very few restrictions

on what an independent counsel, or special counsel,

special prosecutor can do.

They follow what they see.

I always analogize it to the great book

by Herman Melville, "Moby Dick."

Captain Ahab had an obsession, he had to get the white whale,

even if it cost him his life and the life of his crew.

And I think when you have a special counsel,

they have to find somebody.

If they don't, they will have wasted the taxpayers' money.

And that's what's wrong with bringing somebody on board

and saying we want you to find crimes.

It reminds me of what Lavrentiy

Beria, the head of the KGB, said to Joseph Stalin.

He said, show me the man and I'll find you the crime.

You can find criminal activities against almost anybody who's

involved in complicated business, complicated politics,

if you look hard enough and if your goal is

to find criminal activity.

That's not the way democracy should operate.

By the way, we're not the only country

that's suffering from that.

In Israel today, Prime Minister Netanyahu

is being hounded by trivial charges of criminal conduct

that maybe he took some cigars or champagne,

or his wife took some trays of food,

and they're trying to get him out of office.

Not politically, not through the legal means,

but through some efforts to try to criminalize

political differences.

So this is a spreading phenomenon

that endangers democracy all over the world.

Oh, you very cogently suggested a while ago

that there should be a presidential commission.

If they want to talk about Russia, let a commission do it.

Can we transition, do you think, from this special prosecutor

or special counsel to a special presidential commission

and shut Mueller down, or is that possible in today's world?

I think we made a mistake.

We should never have had a special counsel,

because I didn't see any evidence of crime.

We should have had an independent commission,

bipartisan, nonpartisan of the kind that

was appointed after 9/11 to look into the impact of Russia

on elections.

That's not a Democrat Republican issue,

that's an American issue.

If the Russians are trying to impact our election,

doesn't matter whether they're doing

it to help one side or another, they shouldn't be doing it.

And if we had an independent commission,

we'd already know what was going on because it

would be done in the open.

Instead a grand jury is always done in secret,

so we're not going to find out what actually went on

with Russia, unless and until the grand jury decides

to indict.

And if it decides not to indict,

we'll have learned nothing.

If it decides to indict, there may be guilty pleas,

so we'll never know what happened.

It was the wrong vehicle, the wrong mechanism

for trying to get the kind of information

that all Americans are entitled to.

Namely did Russia try to influence the outcome of not

only this election, but previous elections,

and will they try to influence the outcome

of future elections?

Can we shift at this point in the narrative

from the special counsel to a commission that you suggest?

Can it be done?

It would be very difficult to do that,

but I think appointing a special commission would still

be a good idea.

And it would take a lot of the steam

away from the special counsel, because he operates in secret.

He operates behind closed doors without the defendants

having their lawyer present.

Grand juries hear only one side of the evidence, only one side.

That's why it was said by the Chief Judge of New York,

a prosecutor can get a grand jury to indict a ham sandwich.

It's the easiest thing in the world, because all they hear

is one side.

Whereas a commission would hear all sides of the issue.

Would even invite the Russians to come and testify.

Would invite Democrats, Republicans.

We would hear everything.

But now we're not going to hear anything, because it's

behind closed doors.

Professor, brilliant analysis.

Thanks for being with us.

We appreciate it so much.

Thank you very much.

Thank you.

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