The Department of Justice's release of the memo dropping a case of obstruction of justice against then-President Donald Trump might start a precedent, legal expert Alan Dershowitz told Newsmax on Wednesday.
"This was a great decision allowing that memo to come out, and the memo should restore some faith in the Justice Department," Dershowitz told "The Record With Greta Van Susteren." "It's a very thorough memorandum, and it goes through all the issues and it indicates that, although there was a lot of political pressure to prosecute the former president for obstruction of justice, the case just hasn't been made.
"Now, of course, cynics could say, 'Well, of course, it wasn't made to a Republican attorney general or to a Republican Department of Justice.' But what if the shoe were on the other foot? What if this were a Democratic administration, as there is now, would the same conclusion had been reached?"
This is precedent amid the continued pursuit of Trump, Dershowitz, a member of Trump's legal team during his presidency, told Van Susteren.
"There's going to be a lot of discussion now about whether there should be special counsel generally appointed when the attorney general of one party is considering prosecuting a future candidate from the other party," he said.
"The people are just not going to trust a Democratic attorney general to prosecute the person who might run against the person who appointed him as attorney general, and might keep him on if he's reelected."
Also, the full, unredacted release of the memo to then-Attorney General William Barr might be a precedent for fewer redactions in the affidavit used by DOJ to search Trump's residence at Mar-a-Lago this month, Dershowitz said.
"I think it also indicates that maybe that's the trend the courts will adopt also regarding [an] affidavit," he continued. "The presumption should always be in favor of release of information rather than suppression of information. The only real issue is timing, and I don't understand the argument that says the government has the right to keep secret the theory of its investigation.
"I understand names of confidential informers, names of witnesses, but the theory of the investigation? Are they going under the Espionage Act of 1917? If so, what provisions of the Espionage Act? All of that would come out in the bill of particulars. I don't know why they should have a legitimate claim to keep the theory confidential. I wouldn't respect it."
As for the hearing Thursday on the redactions of the affidavit, Dershowitz expects a protracted legal battle regardless of what is determined in the near term.
"Don't hold your breath on what we're going to hear tomorrow," he concluded. "After tomorrow, we'll probably hear only the undisputed parts of the affidavit. Anything that's disputed will probably go up on appeal and probably be subject to a stay."
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