The Case Against the Democratic House Impeaching Trump Page 7
I Haven’t Changed. They Have.4
From an appearance on Tucker Carlson Tonight in May 2018.
TUCKER CARLSON, HOST: Professor Dershowitz joins us tonight. Professor, thanks for coming on.
I was struck by this story, your account of this because you’ve taken unpopular—really unpopular positions, some that I disagree with over the years and you haven’t had this problem. What’s the difference?
DERSHOWITZ: Well, it’s Trump. Trump changes everything. Just yesterday, on Martha’s Vineyard, there was a dinner party, to which my wife and I were not invited, but apparently, I was the subject of the entire conversation. People asking, what’s happened to Dershowitz? Why has he turned to the right?
And I wish I had been there because I would have pointed my finger at my liberal friends and said, “It’s all your fault.” If you had worked as hard for the election of Hillary Clinton as I did and if she had been elected and they were trying to impeach or charge her, I’d be saying exactly the same things in defense of her rights, as I did in the defense of the rights of Bill Clinton and also in the defense of the rights of Richard Nixon going back to the 1970s.
I haven’t changed. They have.
CARLSON: So, just as a reference point, you were involved in the defense for a little while anyway of O. J. Simpson, who I think was credibly accused of murdering two people with a knife.
When you went to Martha’s Vineyard during those years, 1995/1996, did people attack you at dinner parties for that?
DERSHOWITZ: A little bit. But not as much as this. It’s never been like this.
And this time, it includes some of my relatives. As I said, the only thing that hurts me is that up until now, people who are my relatives would tell me, oh, people come over to you and say you are related to Alan Dershowitz, wow; now, they say, you are related to Alan Dershowitz, how can you justify what he has been saying about Donald Trump?
So, it affects my relatives. And that hurts me. I have thick skin. I have been doing this for years. I have developed the thickest skin imaginable.
By the way, a lot of the tweets that I get, hundreds of tweets and messages, a lot of them not only focus on what I have been saying about the constitutional rights of Donald Trump, but they relate it to me being pro-Israel and Jewish and making an anti-Semitic thing out of it as well.
And so, there is not only some—too much—anti-Semitism on the right, there is quite a bit of it on the anti-Trump left as well. I’m feeling it.
CARLSON: Yes. I have noticed that. So, I mean, you’ve been at this for—I don’t know, wouldn’t even want to guess—half a century, an awfully long time, at the kind of forefront of the civil libertarian left. Has that group shrunk? Is it not just Trump, but maybe the left is less interested in traditional civil liberties than it used to be?
DERSHOWITZ: Shrunk? There are no civil libertarians left on the left. Certainly not the American Civil Liberties Union. They were the ones who said that the raid on Cohen’s office, taking his lawyer/client files was a good thing.
Not even suggesting what I suggested and what was ultimately adopted by the judge to have a judicial monitor going through all of these emails. The ACLU is dead in the water when it comes to defending the civil liberties of people who they don’t agree with. And that’s just awful.
There are still some civil libertarians left. But you can count them on one hand. Everybody has to pass the “shoe on the other foot” test. If the shoe were on the other foot, would you be taking the same position you are taking today? I passed that test. There are some others who passed that test. But too many, both on the right and on the left, don’t pass the test.
CARLSON: I agree.
DERSHOWITZ: If Hillary Clinton had been elected, a lot of the people who were supporting me and defending me on the right would be attacking me for criticizing the prosecution or the impeachment of Hillary Clinton.
We need neutral principles. We need standards of constitutionality that are apolitical and I refuse to allow partisan politics to preempt my views on the Constitution, which have stayed the same for fifty years.
CARLSON: Amen! When the FBI broke into the Gmail account of that creepy governor Eliot Spitzer, I defended that creepy governor Eliot Spitzer.
DERSHOWITZ: He is my friend.
CARLSON: I know!
DERSHOWITZ: He was my research assistant. I like Eliot.
CARLSON: But it was totally wrong what they did to him. And it’s important to say that. Professor, thank you. Great to see you.
DERSHOWITZ: Likewise.
Trump: Accusations and Realities
The blame game continues and the double standard rules as Democrats, who were happy with FBI director James Comey’s decision not to prosecute Hillary Clinton, remain keen on pursuing a case against Donald Trump based on evidence, or lack thereof, now available. “Corrupt motive” is alleged for President Trump’s firing of Comey. I argue in these essays and transcripts that what constitutes this vague and open-ended term often depends on the political bias of the accuser and can be a double-edged sword used against both Democrats and Republicans by politically motivated prosecutors and legislators. As demands to prosecute President Trump for corruption persist, I point out the dangers of how expandable such a term can be, whereas, in fact, recent court rulings narrow the open-ended term, and lead us to conclude that President Trump’s actions do not fit the definition of corruption under federal statutes.
A president is not above the law; however, under our constitutional system of checks and balances, the president cannot be charged with a crime if his or her actions were constitutionally authorized. We must not compromise our constitutional principles, and yet, partisan zeal prefers to ignore these fundamentals. I offer examples of past presidents exercising constitutional authority despite allegations or charges of obstruction of justice, and I take to task my colleague Larry Tribe’s response to my argument, pointing out our differences with respect to the Constitution and efforts to criminalize political conduct.
In light of the fact that President Trump was constitutionally authorized to fire FBI director James Comey, and Deputy Attorney General Rod Rosenstein authored the memo justifying the firing, I ask whether Rosenstein should be recused from supervising Special Counsel Robert Mueller’s investigation of possible obstruction of justice growing out of the Russia investigation.
Finally, I discuss several categories of cases relating to President Trump that are being investigated, including constitutional acts such as granting pardons, private acts that preceded his presidency, emoluments, and whether there was collusion.
A Partisan Rush to Prosecute Trump5
When I taught law at Harvard, I always gave a final exam that included what is called an “issue spotter.” I presented a complex hypothetical case, often based on a real one, and asked the students to stretch their imaginations to come up with every conceivable crime that might be charged and every conceivable defense that might be offered. That was the first part of the question, and most students excelled at spotting the relevant issues. In the second part of the question, I asked them to use their judgment in deciding which, if any, of these crimes could realistically be charged and which defenses could realistically be offered. It was this part of the question that separated the very good lawyers, which included the vast majority of the students, from the truly exceptional ones. To be a great lawyer requires the exercise of judgment, subtlety, nuance, and an ability to predict what the courts will do.
I am reminded of these exams when I read op-eds and listen to TV appearances, some by my former excellent students, that apply only the first part of the test to the current legal situations confronting the Trump administration. These smart lawyers try to come up with every conceivable statute that an imaginative lawyer could identify, ranging from the Logan Act (which hasn’t been used in 215 years), to treason (which is narrowly defined in the Constitution), to obstruction of justice, to witness tampering, to violations of campaign financing law
s (which are so vague and open-ended that half of America’s politicians would be in jail if they were broadly applied).
I have to admit that these lawyers show great imagination—imagination they rightly condemn when Republicans play the same game, accusing Hillary Clinton of espionage and other open-ended crimes. But they show scant judgment or nuance in distinguishing what might be possible based on the broadest interpretation of the language and what is realistic based on court precedents, prosecutorial discretion, equal application, and simple justice. It is not that these lawyers aren’t brilliant. They are. It’s not their intellect I am questioning. It is the double standard they seem to be applying to Donald Trump and Hillary Clinton, in particular, and to the opposing party and their party, in general. The hyper-partisanship I’ve already lamented as criminalizing our politics is one factor that must never enter into prosecutorial judgment, regardless how strong and even legitimate the negative feelings are about a political opponent.
It is tempting, because it is so easy, to comb the statute books in an effort to identify every conceivable crime that might be applicable to any given situation. As Harvey Silverglate wrote in his superb book, Three Felonies a Day, prosecutors play the following game: One names a well-known and controversial person, and the others search through the statute books to figure out which three felonies they committed on a given day. That is what prosecutors do when they are playing games. It’s not supposed to be what they do when they destroy a person’s life by indicting them.
Former FBI director James Comey understood the role of a prosecutor when he concluded that “there is evidence of potential violations of the statutes regarding the handling of classified information” by Clinton. But after engaging in the first part of the criminal law exam exercise, he turned to the second part, involving judgment, and concluded that “our judgment is that no reasonable prosecutor would bring such a case.” Silverglate shows that our criminal statute books are overloaded with crimes that can be expanded to fit any politician or businessman or any controversial figure.
Comey’s conclusion generated outcries of protest from Republican partisans who had played the same game that Democratic partisans are now playing when they demanded that if there is evidence of potential violations of the statutes, then a prosecution must be brought. But these zealots were wrong and Comey was right. (He was not right in making public his evaluation of the evidence and his finding that Clinton was “extremely careless [in her] handling of very sensitive, highly classified information.” But that is a different matter.)
Democratic partisans, who were happy with Comey’s conclusion not to prosecute Clinton, should be applying the same standards to Trump. No reasonable prosecutor would bring a charge of treason, tampering with witnesses, obstruction of justice, or violating campaign laws, based on the evidence that is now available. (It is possible that evidence may emerge of such crimes. But based on what we now know, that is highly unlikely.)
So, let’s not treat the criminal justice system as a law school exam in which students are asked to catalog every possible violation of our accordion-like laws. But if we insist on doing so, let’s at least include the second part of the exam question: showing judgment and nuance in deciding whether to bring a case even if there is “evidence of potential violations of the statutes.” The rule of law cannot survive a double standard. What is good for the goose must be good for the gander, and what we applauded with regard to Hillary Clinton we must not condemn with regard to Donald Trump.
Why Donald Trump Can’t Be Charged with Obstruction6
Let me further explain the conclusion of the previous essay:
The United States Constitution, unlike those of other Western democracies, provides for separation of powers as well as a system of checks and balances between the branches of government. This means that the three branches of government—the judicial, the executive, and the legislative—are equal and independent of each other, and that no branch may intrude on the power of the other. As part of this system of separation of powers, the members of each branch are given limited immunity from prosecution for performing their constitutionally authorized duties.
Thus, a senator or congressman may not be prosecuted for certain criminal acts that he or she commits while attending or travelling to or from Congress. Nor can a judge be prosecuted for judicial actions while on the bench. Although these immunities are limited, they do protect members of Congress and judges from prosecution for actions for which ordinary citizens can be prosecuted. These limited immunities do not place government official above the law because they are authorized by the law as part of our system of checks and balances.
In light of this reality, it should surprise no one that the president—who is the head of the executive branch of government—is also immune from prosecution for performing his constitutionally authorized duties. It follows, therefore, that a president may never be charged with obstruction of justice for firing the head of the FBI, pardoning potential witnesses against him, or directing law enforcement officials who to prosecute and who not to prosecute. The Constitution explicitly authorizes the president to pardon anyone. It also authorizes the president to see that the laws are faithfully executed. Actions made in the course of carrying out these functions are constitutionally protected.
Presidents Richard Nixon and Bill Clinton were both charged with obstruction of justice in Articles of Impeachment. But these charges were not for exercising their constitutional authority. Nixon was charged with instructing a witness to lie, paying hush money, and destroying evidence. President Clinton was charged for allegedly asking witnesses to lie. None of these acts are authorized by the Constitution or are part of a president’s constitutionally protected activities.
Therein lays the constitutional distinction. A president can be charged with obstruction of justice for criminal acts that are not part of his constitutionally authorized powers—acts such as subornation of perjury, bribery, destroying evidence, and paying hush money. These are independent crimes that also constitute obstruction of justice. A president may not, however, be charged, for firing an executive official, telling law enforcement who to prosecute, or pardoning someone.
But what if his motive in engaging in these constitutional acts is corrupt? The same question could, of course, be asked about the motives of members of Congress or judges. The answer is that if an act is explicitly authorized by the Constitution, the doctrine of separation of powers precludes inquiry into the motives of government actors. To rule otherwise would interfere with our delicate system of separation of powers and checks and balances. President Bush’s motives were likely corrupt: he pardoned potential witnesses against him in order to protect himself from prosecution, impeachment, and/or political criticism. Yet the Special Prosecutor had no authority to base charges on his assessment of the president’s motives. Every government official always has mixed motives underlying his or her actions. These motives include self-aggrandizement, improving reelection prospects, getting a good advance for a book, or helping his or her party, as well as patriotism.
Limited immunity, by its very nature, means that public officials cannot have their motives serve as a basis for prosecution if their constitutionally authorized acts are protected by our system of separation of powers. This may mean that certain public officials will avoid being charged for actions for which ordinary citizens could be charged. That is the price we pay for our system of separation of powers.
For some political partisans, this price is too high. They believe that ending a presidency of Donald Trump is worth compromising constitutional principles. Partisans on the other side would have done the same had Hillary Clinton been elected president amid their shouts of “lock her up.” I have been criticized by some of my friends on the left for placing constitutional principles above partisan consideration. I proudly plead guilty to that charge.
“Corrupt Motive” Is Not a Proper Criterion for Prosecuting a President7
Many of those wh
o insist that President Trump has obstructed justice point to his allegedly “corrupt motive” in firing former FBI director James Comey after telling him that he “hoped” he would end his investigation of Lieutenant General Michael Flynn. They concede—as Comey himself did—that the president has the constitutional authority to fire the director and to order him to end (or start) any investigation, just as he has the authority to pardon anyone being investigated. But they argue that these constitutionally authorized innocent acts become criminal if the president was “corruptly motivated.”
This is a dangerous argument that no civil libertarian should be pressing.
“Corrupt motive” is an extraordinarily vague and open-ended term that can be expanded or contracted at the whim of zealous or politically motivated prosecutors. It is bad enough when this accordion-like term is used in the context of economic corruption, but it is far worse—and more dangerous to liberty—when used in the context of political disagreements. In commercial cases where corrupt intent may be an element, the act itself is generally not constitutionally protected. It often involves a gray-area financial transaction. But in political cases—especially those not involving money—the act itself is constitutionally protected, and the motive, which is often mixed, is placed on trial. It becomes the sole criterion for turning a constitutionally authorized political act into a felony.
What constitutes a corrupt motive will often depend on the political bias of the accuser. For some Democrats, the motives of all Republicans are suspect. The same is true for some Republicans. Again, partisanship rears its ugly head. Corrupt motive is in the eye of the beholder, and the beholder’s eyes are often more open to charges of corrupt motives on the part of their political enemies than their political allies.