Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School.
“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 …” (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’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.