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Trying to Make Sense of Alan Dershowitz’s Argument on Fox & Friends This Morning

Alan Dershowitz at an event on Feb. 3, 2016, in New York City.
Alan Dershowitz at an event on Feb. 3, 2016, in New York City. John Lamparski/Getty Images

On Monday morning, Donald Trump told his Twitter followers to check out an appearance on Fox & Friends by Alan Dershowitz, a legal scholar and former Harvard Law professor, “with respect to the greatest Witch Hunt in U.S. political history.”

On the Fox & Friends segment, Dershowitz argued Trump had not obstructed justice—and that it was nearly impossible for a president to be guilty of obstruction short of literally destroying physical evidence. Charging Trump with obstruction of justice even though he was exercising his constitutional authority under Article II would actually lead to a constitutional crisis, he argued.

For obstruction of justice by the president, you need clearly illegal acts. With Nixon, hush money paid, telling people to lie, destroying evidence. Even with Clinton, they said that he tried to influence potential witnesses not to tell the truth. But there’s never been a case in history where a president has been charged with obstruction of justice for merely exercising his constitutional authority.

Dershowitz’s opinion relies largely on the argument that the president’s intent doesn’t matter. Dershowitz cites the president’s powers to “take care that the laws be faithfully executed.” Under those powers, the president can alter the course of an investigation, for example, or pardon someone.

Dershowitz argues that, similarly, the president couldn’t obstruct justice by pressuring former FBI Director James Comey to stop his inquiries into Russian election meddling, even if he knew former National Security Adviser Michael Flynn lied to the FBI, or by later firing Comey. (Trump’s personal attorney, John Dowd, also made the claim Monday in an interview with Axios that the president cannot be guilty of obstruction of justice because of his power as chief law enforcement officer under Article II of the Constitution.)

Some legal experts, however, argue that the president’s intent very much matters in discussions of “faithfully executing” the laws. Writing in the California Law Review in July, Daniel Hemel and Eric Posner, Slate contributors and professors at the University of Chicago Law School, argue that while the Senate has not decided whether presidential obstruction of justice is a “high crime or misdemeanor” that could make for an impeachable offense, presidents are not above being charged with obstruction of justice.

As defined by statute and precedent, the crime of obstruction occurs when an individual “corruptly” endeavors to impede or influence an investigation or other proceeding, and the word “corruptly” is understood to mean “with an improper purpose.”
When the president impedes or influences an investigation with a proper purpose, he does not commit the crime of obstruction. … But if the president interferes with an investigation because he worries that it might bring to light criminal activity by himself, his family, or his top aides—and not for reasons related to national security or faithful execution of federal law—then he acts corruptly, and thus criminally. The Constitution does not authorize the president to employ his office for personal or partisan advantage, and intervening in an investigation for that purpose is not a proper.

Randall Eliason, a professor at the George Washington University Law School who writes the legal blog Sidebars, has, in his words, “engaged in a bit of a back-and-forth” with Dershowitz on Twitter. Eliason says Dershowitz’s arguments are “extraordinary.”

“I think what it boils down to is he’s claiming that the president is immune from obstruction of justice,” he said in an interview Monday. “As far as I can tell, he’s just asserting that. There’s no authority that says that. Things that are still legal can be obstruction of justice if done with corrupt intent.”

Eliason also argues Dershowitz’s argument here is based off a misleading idea of what “precedent” is. Dershowitz argued that previous presidents fired high-ranking officials and directed investigations during controversial times:

That’s what Thomas Jefferson did, that’s what Lincoln did, that’s what Roosevelt did. We have precedents that clearly establish that. When George Bush the first pardoned Caspar Weinberger in order to end the investigation that would have led to him, nobody suggested obstruction of justice.

President George H.W. Bush did indeed pardon Caspar Weinberger and five others implicated in the Iran-Contra affair, causing some to suspect he’d tried to prevent them from implicating him. “But precedent suggests there’s some force to it, that it should inform what you do today,” Eliason said. “A decision not to bring charges just means that particular prosecutor on that particular case on that particular day didn’t bring charges, and we don’t know why, and that doesn’t prove anything.”

Perhaps the more surprising argument Dershowitz made was that had the president really been trying to obstruct justice, he would have pardoned Flynn:

And then Flynn wouldn’t be cooperating with the other side, and the president would have had the complete authority to do so. And Flynn never would have been indicted, never would have turned as a witness against him. So I think the fact that the president hasn’t pardoned Flynn even though he has the power to do so is very good evidence there’s no obstruction of justice going on here.

It’s true Trump could have pardoned Flynn, but not only would he have likely faced a serious political backlash, it’s possible that pardoning Flynn with, as Eliason describes it, “corrupt reasons” might have possibly gotten him into legal trouble. “The power to pardon does not include power to do so for criminal reasons,” Eliason argues in his blog post.

He also takes issue with Dershowitz’s logic. “We don’t usually argue that because I could have done something worse, that suggests I didn’t do something bad here,” he said. “If I was accused of shredding files, I couldn’t respond, ‘Oh look, I didn’t murder my accountant.’ ”

It’s worth considering the philosophy behind why or why not the president could be immune from charges of obstruction of justice. There are valid arguments for why the president should be allowed complete control over a federal investigation, Hemel and Posner write, no matter what. Greater presidential control over law enforcement could mean a greater check on the legislative branch, they write, and his role in deciding law enforcement priorities is an important one. But another important constitutional value holds that no one is above the law, and another asserts a president should not use his authority over law enforcement to suppress political opposition.

As for Dershowitz, he is a more controversial figure than Fox & Friends’ description of him as a “lifelong Democrat” would imply. Dershowitz, once the youngest professor ever hired by Harvard Law School, acquired fame as an attorney for some of the most prominent and controversial criminal defendants in the past five decades, as well as for his books and appearances as a television commentator. Recently, Dershowitz, who supported Hillary Clinton, has become what the Daily Beast described as a “staple of conservative media” as one of the Mueller investigation’s loudest critics.

Per the Daily Beast:

He’s likened the investigation to a KGB hunt, and special counsel Bob Mueller to a notoriously obsessed sailor. It’s made him a Fox News fixture, and that has left some of his counterparts in the legal world baffled and skeptical. But those close to Dershowitz say his vociferous criticism of Mueller’s investigation is the opposite of surprising—and that Mueller and Dershowitz have a history.

The Daily Beast writes that in the early ’90s, Mueller reportedly told Dershowitz and another attorney that “criticism of the [FBI] is a non-starter” when the two attorneys were arguing one of their clients deserved a new trial due to problems with the bureau’s investigation.

Dershowitz has repeatedly argued that the Mueller investigation is a political, rather than legal, tool, and that it is part of a growing trend of criminal prosecutions being used for political gain. However, as Eliason wrote in the Washington Post, the Mueller investigation was formed by Trump’s Department of Justice. Regardless of any liberal enthusiasm or dreams of impeachment, the Mueller investigation is not a political ploy by the Democrats.

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