Opponents of President Trump were hoping that former FBI Director James Comey’s statements would provide some sort of “smoking gun”. Attorney Alan Dershowitz says that did not happen.
Instead it has weakened an already weak case for obstruction of justice.
Civil liberties are often the first casualty of partisan efforts to “get” a political opponent — whether it be Republicans going after Clinton or Democrats going after Trump — and all Americans who care about the Constitution and civil liberties must join together to protest efforts to expand existing criminal law to get political opponents.
Today it’s Trump. Yesterday it was Clinton. Tomorrow it could be you.
Dershowitz walks thru his reasoning:
Throughout American history — from Adams to Jefferson to Lincoln to Roosevelt to Kennedy to Obama — presidents have directed (not merely requested) the Justice Department to investigate, prosecute (or not prosecute) specific individuals or categories of individuals.
It is only recently that the tradition of an independent Justice Department and FBI has emerged. But traditions, even salutary ones, cannot form the basis of a criminal charge. It would be far better if our constitution provided for prosecutors who were not part of the executive branch, which is under the direction of the president.
But our constitution makes the attorney general both the chief prosecutor and the chief political adviser to the president on matters of justice and law enforcement.
The president can, as a matter of constitutional law, direct the attorney general, and his subordinate, the director of the FBI. The president can tell them what to do, whom to prosecute and whom not to prosecute. Indeed, the president has the constitutional authority to stop the investigation of any person by simply pardoning that person.
Dershowitz claims President Trump cannot be charged with obstruction of justice just because he fired James Comey.
The first President Bush pardoned Caspar Weinberger, his secretary of defense, in the middle of an investigation that could have incriminated Bush. That was not an obstruction and neither would a pardon of Flynn have been a crime. A president cannot be charged with a crime for properly exercising his constitutional authority.
For the same reason President Trump cannot be charged with obstruction for firing Comey, which he had the constitutional authority to do.
Read the full article Here.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School and author of Taking the Stand: My Life in the Law and Electile Dysfunction: A Guide for the Unaroused Voter.
