President Donald Trump probably will not fire anyone involved in special counsel Robert Mueller's investigation into the 2016 campaign and Russian interference, but his lawyers might push for the recusal of Deputy Attorney General Rod Rosenstein, Harvard Law professor emeritus Alan Dershowitz said Thursday.
"He is the major witness, at this point, for the defense," Dershowitz told Fox News' "America's Newsroom."
"You can't be both a witness for the defense and the head of the prosecution team. It is an obvious recusal."
That would be different from Trump firing Rosenstein, as it is "something the person does himself or the court imposes on them, not something the president of the United States would do."
Meanwhile, Dershowitz commented Thursday he considers the raid FBI agents conducted against Trump attorney Michael Cohen "unjustified."
"What they were looking for were not the most serious crimes, not terrorism, drug lords or organized crime but technical election violations or tax violations," he said. "To raid a lawyer's office and to seize potentially privileged information. Imagine if they had raided your doctor's office and gotten your doctor information."
The warrant against Cohen, Dershowitz said, must show there was probable cause for believing there were illegal conversations between himself and Trump, and even if the attorney engaged in flawed behavior, it still would not justify exposing his client's information.
"Let me take a hypothetical," he said. "The president is on tape talking about 'Access Hollywood.' The tape itself may have been unlawfully obtained under California law because it seems clear Trump did not know he was being taped and California law you need the permission of the person being taped to be taped. I can imagine him calling his lawyer and saying by the way, Mr. Cohen, I was taped illegally. Do everything you can in your power legally to stop this thing from coming out."
If that happened, Dershowitz said, it would be a "perfectly lawful lawyer/client communication."
However, if other FBi agents and prosecutors were listening to such confidential material and saying they would not leak it?
"Oh, yeah, I'll trust that," Dershowitz said. "Hearing the president talk and not leaking it? Come on."
A raid on a lawyer's office should be a last resort, he added, and "even if you do that, what you should do is you should bring a judge with you, [so] before anything you seize they look through it and says this is lawyer client privilege or priest privilege."
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