Friday, June 9, 2017

Alan Dershowitz: James Comey What a Coward



  1. "In the View of the Supreme Court, Alan Dershowitz Is Wrong About the Powers of the President
    By Rick Pildes Friday, June 9, 2017

    Alan Dershowitz, in a series of recent op-eds, has taken to arguing in his characteristic take-no-prisoners style that the whole issue of whether President Trump might have obstructed justice is a red herring. Even if the President ordered James Comey to shut down the Flynn investigation and had a corrupt intent for doing so, this would still not amount to the crime of obstruction of justice. The reason, according to Dershowitz, is that the Constitution gives the exclusive power to the President to control all federal law-enforcement investigations—and thus to shut any of them down for any reason the President sees fit. In other words, the President can never commit obstruction of justice by shutting down a criminal investigation or prosecution.

    But Dershowitz fails to take into account that the Supreme Court has decisively rejected this view. In Morrison v. Olson (1988), a 7-1 Supreme Court turned back constitutional challenges to Congress’ creation of the Act that gave us the office of the Independent Counsel—and in doing so, dismissed exactly the argument that Dershowitz now seeks to invoke.

    The Ethics in Government Act was created out of the recognition that the President should be taken out of the process of controlling investigations and prosecutions that involved potential crimes by himself or high-ranking government officials—i.e., close aides of the President. As the Supreme Court thought was obvious, “Congress, of course, was concerned when it created the office of independent counsel with the conflicts of interest that could arise in situations when the Executive Branch is called upon to investigate its own high-ranking officers.”

    The Act created a process that could lead to the appointment of an Independent Counsel for this role, and the entire point of the Act was to insulate the Independent Counsel—and hence the investigation and prosecution of crimes involving the President and his or her top aides—from the President’s complete control. The Act essentially put the powers of the Department of Justice in the hands of the Independent Counsel: it vested him or her with the "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice [and] the Attorney General."

    Then, to even further ensure that the President not have unfettered control when potential crimes involving himself and his top aides were at stake, the Independent Counsel, once appointed, was wrapped in several layers of additional insulation from presidential control. Thus, the only person who could remove the counsel from office was the Attorney General—and, very importantly, the Attorney General could only do that for limited and specific reasons (“good cause”), such as misconduct in office or inability to perform the counsel’s duties.* If the Attorney General did remove a counsel, the AG had to file a report with Congress and the courts stating the factual basis for this removal. And as yet further protection of the Independent Counsel, the federal courts—which were given the power to reinstate an Independent Counsel who had been illegally removed—would be the ultimate adjudicator of whether any removal was in fact for good cause.

  2. This analysis proves, rather than disproves, Dershowitz' statement.

    The above-mentioned act applies when a special counsel is appointed. It does not apply to the Director of the FBI.

    If Comey thought that someone close to the President had committed a crime, Comey should have asked the AG to appoint an Indelendent Counsel.

    But, because Comey wanted to seem like the Big Dog, he kept the case with him, and, inadvertently, within Trump's ability to control and affect.

    Even with an independent counsel, Trump can pardon as soon as Flynn is convicted. So, the act, ultimately, is just another waste of time and the taxpayer's money.