Tag Archives: Dershowitz

Shilling for Trump

Well, well, well. As the rumors of more indictments of Trump acolytes circulate in the winter winds of Washington, the Trump enablers in Congress appear to have been overcome with a bad case of nerves. They are pulling out the stops in an overt effort to derail the investigation by Special Prosecutor Mueller before it makes another public move against the Trump team. Trump himself approved the release of classified information in the now infamous “Nunes memo,” and promptly tweeted that the memo completely exonerated him of any charge of collusion or obstruction of justice. In case you don’t do Twitter, here is what he said:

This memo totally vindicates “Trump” in probe. But the Russian Witch Hunt goes on and on. Their was no Collusion and there was no Obstruction (the word now used because, after one year of looking endlessly and finding NOTHING, collusion is dead). This is an American disgrace!

Au contraire, I suggest that his personal involvement in the release of the memo and attempt to use it to thwart the Mueller investigation represents, by itself, hard evidence of a direct attempt by Trump to obstruct justice by interfering in the investigation regarding his and his allies conduct. Bad move.

Today I want to turn to Alan Dershowitz who, not long ago, was a “regular” on CNN, first as a seemingly independent “legal expert” and then, increasingly, making partisan arguments in support of Trump’s position that “because I am President, I can do no wrong.” Dershowitz, a highly educated and aggressive advocate, is now a “regular” on Fox News.

Dershowitz has now argued that the Nunes Memo is a credible document entitled to respect andfurther validation. See http://fxn.ws/2DYLWDO While acknowledging that the memo is a “second hand, hearsay, account,” Dershowitz nevertheless says the memo establishes “probable cause” (the legal standard for making an arrest), for further investigation. His use of the term “probable cause” is an unsubtle way of suggesting, without saying it, that the Nunes document is evidence that a crime was committed by the FBI and/or Justice Department in applying for legal permission to surveil Carter Page, a Trump promoter and campaign worker. Dershowitz repeats his earlier call for a “nonpartisan commission of objective experts to investigate the entire issue of Russian involvement in the election and other claims made by either party about any unfairness surrounding it.” [my emphasis]

Putting aside where on this planet and this country, such “objective experts” might be found, Dershowitz, to his credit, adds that the Democratic version of the Nunes claims, also “secondhand and hearsay,” should also be released (not happening while Republicans are running things) and that this will “help to level the playing field.” Then, subject to “real needs of national security,” whatever that means and whoever would decide, the public should get the entire “redacted version” of the FISA application for surveillance of Carter Page and be able to judge for themselves whether the FBI and Department of Justice engaged in a flam-flam, not once, but at least four times, with the FISA judges (different ones for each renewal of the FISA warrant).

So what we have here, according to Dershowitz, is a situation where secondhand, highly partisan hearsay “information” from Republicans like Nunes with a history of secret dealings with the White House about the Russia election interference raises sufficient issues that we should stop the Mueller investigation and start all over again with a “nonpartisan commission” of “objective experts” to consider the issues raised by Russian interference, all because of a partisan contention that one person was surveilled inappropriately supported only  by “secondhand hearsay” information.

If this weren’t so serious. it would be laughable. Whether or not it’s true that Congress should have proceeded by nonpartisan commission rather than a special prosecutor, it is too late to change trains. The Mueller investigation is way down the tracks. The desperate maneuver of releasing only the Republican version of the Nunes memo indicates pretty clearly that the heat is being felt in the White House and on Capitol Hill. Whether deliberate or not, Dershowitz’s argument would lead to a massive slowdown, perhaps a complete shutdown, of the entire investigation, which is, of course, exactly what Trump and the Republicans in Congress wanted when they released the memo.

Dershowitz disagrees, of course, arguing that the “American public has lost faith in the objectivity of congressional committees.” No doubt, they have. Why would it be otherwise? The secret maneuvering of the Republican leadership, Nunes’s dark-of-night visits to the White House and all the other nonsense would give the Pope a headache. The notion that the public can effectively act as a jury viewing a heavily redacted document while Republicans and Democrats hurl invectives at each other about its meaning is a bridge way too far, a prescription for delay and ultimate failure. Imperfect as the process may be, the Special Prosecutor has the intelligence, independence and proper tools to do the job that needs doing.

If the President would just shut up, the entire process, and the American people in the bargain, would be well served. The fact that he keeps proclaiming his innocence when he hasn’t been charged with anything is quite telling. His behavior is that of a guilty person flailing in panic at the realization that his conduct is about to be laid bare for the world to see.

As a final word on this, do not fall prey to the facile word play of skilled advocates like Dershowitz. His legal credentials and carefully crafted arguments may seem reasonable on the surface. Before making a judgment about this, read the piece in Politico by Paul Rosenzweig at http://politi.co/2DW2fkG entitled “Even If You Take the Nunes Memo Seriously, It Makes No Sense.” The conservative R Institute, with which Rosenzweig is a Senior Fellow, sits quite far from the left wing of the Democratic Party. He is clearly not a partisan for the anti-Trump side of this fight.

The article addresses this: “let’s take the Nunes memorandum on its merits and assume that it is what it purports to be—an accurate summary of a purported problem with the FISA application process. What then should we make of it?” Rosenzweig, in my opinion, eviscerates the Nunes/Dershowitz/Trump position on the FISA application.  Read it – it’s short and accessible — and then judge for yourself.

Most Disturbing Statements Since Trump Was Elected

According to a recent report in Axios, cited by CNN’s Chris Cillizza, Donald Trump’s personal attorney, John Dowd, recently said the “President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case.” http://cnn.it/2AUcpAw  That extraordinary claim has now been repeated in even more stark terms by the President (not mine) himself: ““I have absolute right to do what I want to do with the Justice Department,” Trump asserted in a widely reported interview with the New York Times. My emphasis on “absolute right,” because this is the type of claim made by dictators and kings. Under the Constitution there are few, if any, absolute rights and the right to break the law is certainly not one of them.

By extension, Trump’s principle leads to this: since every governor is likely the chief law enforcement officer in a state, the governor cannot obstruct justice under state law by interfering with the independence of the state office of attorney general.  And, since the police chief is the chief law enforcement officer in a city, he cannot obstruct justice either, no matter what he does or no matter what inspires him to act (e.g., here’s $100,000 to stop my friend (or me) from being prosecuted)? Or is it the mayor? Or both? Does Trump really believe that all these people are above the law and may interfere in investigations and prosecutions that could lead to themselves as targets? If that is the state of things, and you add up how many powerful people that involves, with command over the military, National Guard and police, you have the makings of tyranny and dictatorship.

Most likely, Trump never thought about the implications of his statement which he probably sees as applicable only to himself in his capacity as the supreme being.

Mr. Dowd, in his capacity as Trump’s lawyer, is entitled, of course, to make what are sometimes called “extension of law” arguments to support his client’s position, even if, as I believe is true here, the argument is pure poppycock. It is fundamental that a statement (read “expression of view”) made in one context may be harmless but pure poison if said to the wrong person or in a different context. Is the President merely expressing his opinion when he says to the head of the FBI “I sure wish you would let the Flynn thing slide,” and then fires the Director when he does not comply?

One might have pause over this in light of the supporting statements of Harvard Law Professor Alan Dershowitz (disclosure: I studied First Year Criminal Law under him). Dershowitz, however, as smart as he is, is not infallible. His position reminds me of some of the ultra-fine point-making for which law school classes were notoriously famous and are fine in an academic setting. In the real world we inhabit now, it proves way too much to say that the President of the United States is essentially immune from the law against obstruction of justice.

Dershowitz seems to be saying the President is “merely” exercising his Constitutional authority when he, for example, countermands a potential criminal prosecution or, for another, pardons himself or pardons targeted members of his staff even before they are charged with anything. He argues that no president has ever been charged for doing so. So what? Perhaps Special Prosecutor Mueller will be the first. There is always a first time and Trump seems primed to be it.

Obstruction seems just the kind of “high crime” that the Constitution’s impeachment provision was intended to expose to sanction by Congress and by law enforcement after impeachment succeeds.

This “I am the law” approach to governance is precisely what the Founders of the country were trying to overcome in fashioning a constitutional republic of laws, not of men. It was the essential lawlessness of the King of England, whose decrees were final and not subject to question, that the Founders intended to prevent when the office of the President of the United States was created with a provision for impeachment of the President for “high crimes and misdemeanors.” For a short, but incisive, treatment of this subject, read Impeachment, A Citizen’s Guide, by Cass Sunstein. [Note: I expect to discuss that, and some related books, in a forthcoming post.]

Mr. Dowd’s/Trump’s view that the President is both “the law” and “above the law” poses a threat to every American, including those who still think, if that word can be used here, that Trump is infallible. In this country, no one is immune from the reach of the law for crimes committed, including obstruction of justice.

No doubt an impeachment action based on obstruction of justice, collusion with enemies of the country, would end up in the Supreme Court pretty fast because Trump will never yield no matter how compelling the evidence. So, Mr. Mueller, the world turns its eyes to you. Whenever you’re ready. Bring it.

And Happy New Year.