Thursday, June 8, 2017

Obstruction of Justice: Not So Fast

I have full confidence that Senate Democrats will use the James Cowey hearings to pin an obstruction of justice charge on President Donald Trump. Already, a number of learned legal scholars—like Jeffrey Toobin of The New Yorker—have insisted on the point.

And yet, Alan Dershowitz took apart the argument last night for Anderson Cooper. I yield to Dershowitz, because he is an authoritative figure in constitutional law and is certainly not a Trump supporter

The Daily Caller reports the conversation:

Dershowitz said that, constitutionally, a president may direct an intelligence agent to stop an investigation. The “best proof” of that fact, he says, is that Trump could’ve easily pardoned former national security advisor Michael Flynn and the entire investigation would have been over anyway.

“Trump could have told Comey, ‘You are commanded, you are directed, to drop the prosecution against Flynn.’ The president has the right to do that,” he explained. “Remember also what the president could’ve done. He could’ve said to Comey, ‘Stop this investigation, I am now pardoning Flynn. That’s what President Bush did.”

Dershowitz cited the case of Caspar Weinberger, who was pardoned by George H.W. Bush before he could be tried in relation to the Iran-Contra scandal.

“You cannot have obstruction of justice when the President exercises his constitutional authority to pardon, his constitutional authority to fire the director of the FBI, his constitutional authority to tell the director of the FBI who to prosecute, who not to prosecute,” Dershowitz elaborated.

“You don’t believe he was trying to influence of impede any possible or further investigation into Flynn?” Cooper asked.

“What I’m telling you is that even if he did want it to impede it, and even if he did impede it, that is his constitutional power. He has the right to say, ‘You will not investigate Flynn.'”


Ares Olympus said...

That looks like half an argument. You can't treat behavior in isolation, but as a sequence, a narrative that doesn't have to be true, but that looks true. 1+1=2 doesn't always mean the 1's combined are a cause of 2, but the implication can't ever be denied.

1. The president requesting action, requesting "loyalty"
2. Comey refusing the request, refusing "loyalty", offered "honest loyalty"
3. The president fires Comey

To any ordinary human being this looks bad. This looks like a president who is trying to obstruct justice.
James Comey: A few moments later, the President said, “I need loyalty, I expect loyalty.” I didn’t move, speak, or change my facial expression in any way during the awkward silence that followed. We simply looked at each other in silence.

How can the public trust anyone Trump wants to hire as new head of the FBI if we know his number one requirement is personal loyalty?

And how could anyone offer loyalty, even if they want to, knowing every time one of his enablers says something to protect Trump, the next day Trump admits something that contradicts what his enablers just said.

Bret Stephens offers this as a fool's mission:
Bret Stephens: For those who serve the president: The price of your diligence is his flippancy. The price of your efforts to protect him is his willingness to expose you. The price of your sacrifice — of time, profit, career and, in the long run, reputation — is his indifference. The price of your loyalty is his contempt.

No one with any honor or self-respect would dare work for Trump, and that means he can only surround himself by scoundrels with as little interest in the truth as Trump himself.

Power corrupts, absolute power corrupts absolutely. Trump doesn't have absolute power, but he is used to replacing reality with what works for him, and surrounding himself with people who will strategically agree with him.

The biggest power Trump might now have is loyal voters who believe no matter how bad Trump is, everyone else is worse. And as long as Trump's tweets are the gospel true to the true believers, and the republican party submits to this disaster, we will live in a mad house that can only get worse day by day.

trigger warning said...
This comment has been removed by the author.
trigger warning said...

Topic: Constitutional Law and Executive Powers

Participants: Ares Olympus vs Alan Dershowitz

Stuart Schneiderman said...

On Comedy Central!! Failing to respect someone who is an expert in the field reveals a bad attitude... at the least.

Sam L. said...

Ah, the "irreplaceable" man got replaced. Bummmmmmmmer.

Ares Olympus said...

I have no reason to "disrespect" Dershowitz, and much appreciate his legal opinions, but legal opinions are not the only thing that mattered.

Trump demonstrates "bad character" over and over and over. And today we had a chance to hear the president be called a liar in front of the Senate, not that we didn't already know that since Trump changes his stories so frequently, but its significant.
Comey said he was baffled and concerned by Trump’s assertion on television that he had fired the former FBI director because of the Russia investigation, as well as the initial excuse from the administration that Trump had fired Comey due to his botched handling of the investigation into Hillary Clinton’s emails.

“That didn’t make any sense to me,” Comey said. “And although the law required no reason at all to fire an FBI director, the administration then chose to defame me and, more importantly, the FBI by saying that the organization was in disarray, that it was poorly led, that the workforce had lost confidence in its leader. Those were lies, plain and simple. And I am so sorry that the FBI workforce had to hear them, and I am so sorry that the American people were told them.”

Of course Republicans Cruz and Romney said the same thing before the election, and these things will continue. We learn, as if we didn't know, nothing Trump says can be trusted, unless he's incriminating himself after he figures he has gotten what he wants.

Trump can try to fire anyone he wants, and the consequence was getting Rosenstein to appoint Robert Mueller to a special counsel.

There surely is partisanship here, but only because the majority of Republicans have lost their minds and need to defend the indefensible. If partisan interest dominated, Democrats could hope for nothing better than Trump to stay in office through 2018.

Anonymous said...

"60 Minutes" did an extensive i/v w/Comey a few years ago. I was v impressed. I'm not anymore.

Is it ethical or legal to Leak a private conversation w/POTUS in hopes of engendering a Special Prosecutor? Because Comey was AFRAID of Trump?

Or exonerating Hillary, and later publicly putting her under investigation? Which he doesn't have the authority to do?

So many other problems w/Comey. He's a consummate Operator. - Rich Lara

Ignatius Acton Chesterton OCD said...

I've often wondered what these judges believe President Trump does have the power to do.

I am also vexed by this standard being used about the words Trump used on the campaign trail being positioned as indicating motive, and thus material to ordering a stay or saying something is unconstitutional. Where did that standard come from??? Politicians stay stuff all the time.

Ignatius Acton Chesterton OCD said...

More importantly, there is a key question here...

Who runs the government? Elected officials or unelected judges and bureaucrats?

As I've said here many times before, deference should be given to the elected branches of government.

Ignatius Acton Chesterton OCD said...

And as I've said, the United States Constitution ought be at the very center of debate. It's in place./ no matter what these mealymouth silly people say. It should, must, and ought be. And the way everyone is behaving shows reverence and respect for our
Charters ( Declaration of Independence, Inited States Constitution, and the Bill of Rights). Are we to attach ourselves to a standard, or fall hopelessly off the pillar? That is our decision. Because there are always generational movements and desires -- based on delights and disappointments, disgusts and. beautiful encounters, music, joy, war, et cetera.

What I see with the liberals on America are the passions, the lusts, etc. What's next? We decide.

Britain is weak.

Ares Olympus said...

Rich Lara: Is it ethical or legal to Leak a private conversation w/POTUS in hopes of engendering a Special Prosecutor? Because Comey was AFRAID of Trump?

Is it ethical to speak out when you're fired for doing your job?

Trump considers himself a problem solver, wanted Comey to "lift the cloud", and when Comey refused, Trump fired Comey, but that didn't solve the problem. The cloud remains.

At least we're not in Russia where political enemies end up dead. Comey was not afraid for his life. He was afraid of the FBI losing the trust of the United States citizens.

The world where the FBI director does the private room dealings with the president, to decide what is justice is a world we don't want to live in.