Alan M. Dershowitz is an American lawyer, jurist, and author. He is a prominent scholar on United States constitutional law and criminal law, and a leading defender of civil liberties. He spent most of his career at Harvard Law School where he holds the title of Felix Frankfurter Professor of Law, Emeritus.
Yesterday, he posted on op ed on Foxnews.com, which I would like to share with you…
Former FBI Director James Comey’s written statement, which was released in advance of his Thursday testimony before the Senate Intelligence Committee, does not provide evidence that President Trump committed obstruction of justice or any other crime. Indeed it strongly suggests that even under the broadest reasonable definition of obstruction, no such crime was committed.
The crucial conversation occurred in the Oval Office on February 14 between the president and the then director. According to Comey’s contemporaneous memo, the president expressed his opinion that General Flynn “is a good guy.” Comey replied: “He is a good guy.”
The president said the following: “I hope you can see your way clear to letting this thing go.”
Comey understood that to be a reference only to the Flynn investigation and not “the broader investigation into Russia or possible links to the campaign”
Comey had already told the president that “we were not investigating him personally.”
Comey understood “the president to be requesting that we drop any investigation of Flynn in connection with false statements about his conversations with the Russian ambassador in December.”
Comey did not say he would “let this go,” and indeed he did not grant the president’s request to do so. Nor did Comey report this conversation to the attorney general or any other prosecutor. He was troubled by what he regarded as a breach of recent traditions of FBI independence from the White House, though he recognized that “throughout history, some presidents have decided that because ‘problems’ come from the Department of Justice, they should try to hold the Department close.”
That is an understatement.
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.
In Great Britain, Israel and other democracies that respect the rule of law, the Director of Public Prosecution or the attorney general are law enforcement officials who, by law, are independent of the Prime Minister.
But our constitution makes the attorney general both the chief prosecutor and the chief political adviser to the present 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, 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.
Assume, for argument’s sake, that the president had said the following to Comey: quot;You are no longer authorized to investigate Flynn because I have decided to pardon him.” Would that exercise of the president’s constitutional power to pardon constitute a criminal obstruction of justice? Of course not. presidents do that all the time.
The first President Bush pardoned Casper 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.
The Comey statement suggests that one reason the president fired him was because of his refusal or failure to publicly announce that the FBI was not investigating Trump personally. Trump “repeatedly” told Comey to “get that fact out,” and he did not.
If that is true, it is certainly not an obstruction of justice.
Nor is it an obstruction of justice to ask for loyalty from the director of the FBI, who responded “you will get that (‘honest loyalty’) from me.”
Comey understood that he and the president may have understood that vague phrase — “honest loyalty” — “differently.” But no reasonable interpretation of those ambiguous words would give rise to a crime.
Many Trump opponents were hoping that the Comey statement would provide smoking guns.
It has not.
Instead it has weakened an already weak case for obstruction of justice.
The statement may provide political ammunition to Trump opponents, but unless they are willing to stretch Comey’s words and take Trump’s out of context and unless they are prepared to abandon important constitutional principles and civil liberties that protect us all, they should not be searching for ways to expand already elastic criminal statutes and shrink enduring constitutional safeguard in a dangerous and futile effort to criminalize political disagreements.
As I sit down to write this post, my bride is in the living room watching “The Virginian” on INSP. For those of you millennials who do not know who or what “The Virginian” is, it is a Western which ran on NBC from 1962-1971 centering around a Civil War Veteran who works as the Foreman on the Shiloh Ranch in Wyoming. The Virginian’s given name was never revealed during the entire run of the show.
So, what does this have to do with Professor Dershowitz’s op ed?
I’m glad you asked.
This whole attack by the never-ending temper tantrum-throwing Modern American Liberals, including their bought-off politicians and paid and unpaid Internet Trolls, reminds of a Lynch Mob in an old Western.
Just like a Lynch Mob, the Liberals Gang Mentality, fueled by their pre-conditioned Hive Mind, will not allow them to accept the fact that Hillary Clinton was beaten fair and square on November 8th, 2016.
Trump just HAS to have cheated…SOMEHOW.
So, the night of the election, Hillary and her henchman, Podesta came up with this cockamamie Russian Collusion Fairy Tale, which the Libs have been harping on and lusting after like a teenage boy with a vintage Playboy Magazine under his mattress.
The frenzy which they have built themselves into as a group resembles the same mentality of an old West Lynch Mob.
They want a hanging, and by gum, there WILL be a “hanging”, even though, as Professor Dershowitz wrote, there is no proof whatsoever that the President did anything wrong.
Being the minority Political Ideology in America has never stopped Modern American Liberals from trying to enforce their will upon the American people.
On November 8th, the Electoral College, put in place by our Founding Fathers, stopped them.
Today, the Constitution will stop the Lynch Mob.
Instead of Roy Rogers, Gene Autry, and Randolph Scott stopping an innocent man from a Lynch Mob, today’s heroes will be Jefferson, Franklin, and Madison.
So, saddle up, Pards. Today should be some kind of fandango.
Until He Comes,