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Liberal Dershowitz on Trump: It's Not 'Obstruction,' There's No 'Crime'

Michael W. Chapman
By Michael W. Chapman | June 9, 2017 | 11:57 AM EDT

Constitutional scholar and criminal

defense attorney Alan Dershowitz. 

(AlanDershowitz.com)

Constitutional scholar and former Harvard Law Professor Alan Dershowitz, who voted for Hillary Clinton in 2016, said -- in reference to ex-FBI Director James Comey's statment to Congress about President Donald Trump -- that the president could have ordered Comey to end the investigation into former National Security Adviser Michael Flynn and it would not have constituted "obstruction of justice," it would not have been "a crime."

James Comey, who was fired as FBI director by President Trump on May 9, testified before the Senate Intelligenc Committee on June 8 about his firing, conversations he had with Trump about Flynn and Russia, and whether he thought the president crossed a legal or constitutional line. Comey had prepared his opening statement for the committee in advance.

On CNN's Newsroon, June 8,  Dershowitz discussed whether President Trump may have obstructed justice in firing Comey, and was joined in the discussion by host Anderson Cooper and CNN legal analyst Jeffrey Toobin.

Dershowitz, also a criminal law expert and the author of more than 30 books, said, “The president could have told Comey, you are commanded, directed, to drop the prosecution against Flynn. The president has the right to do that. Comey acknowledges that. He says in the statement that historically, historically presidents have done that to the Justice Department."

“But in the last few years, we've had a tradition of separation, but that tradition doesn't create crime," said Dershowitz.  "Remember also what the president could have done. He could have said to Comey, stop this investigation, I am now pardoning Flynn."

"That's what President Bush did," said Dershowitz. "In the beginning of the investigation of Caspar Weinberger, which could have led back to the White House, to the first President Bush, President Bush on the eve of the trial pardoned Caspar Weinberger, pardoned six people, and special counsel [Lawrence] Wash said this is outrageous. He's stopping the investigation."

"Nobody talked about obstruction of justice," said Dershowitz.  

"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, or his constitutional authority to tell the director of the FBI who to prosecute, who not to prosecute," he said. 

CNN's Jeffrey Toobin then said, "Respectfully, I could not think Alan is more wrong. And the simple response is Watergate. I mean, under Alan's theory -- let me finish, Alan. Let me finish. Under your theory, the president, since the FBI works for the president, he can tell them to do anything they want. While in Watergate, the President Nixon, they conspired, they made an agreement to stop the FBI investigation of Watergate. Was that constitutional authority? No, it was a crime."

President Donald J. Trump. (Screenshot: FNC) 

"Several people went to jail, and the House Judiciary Committee voted to impeach President Nixon over it," said Toobin. "So yes, he could have pardoned him, but he cannot obstruct justice."

Dershowitz interjected,  “Impeachment is political. There's no -- there is no judicial review of impeachment. You can impeach a president for jay walking and nobody can review that."

"I'm talking about, was there an obstruction of justice?" said Dershowitz.  "I have to tell you, and I wonder if you would agree with me, Jeffrey, if you and I will focus expert witnesses in an impeachment trial of President Trump, and we were asked the question, has President Trump committed an obstruction of justice by pardoning Flynn, or by firing Comey, or by telling Comey not to investigate Flynn, my answer as an expert on the Constitution would be absolutely not."

"He didn't commit an obstruction of justice," said Dershowitz. "Now you, Congress, you can impeach him if you don't like what he did, if you think it's obstructionist, or would be an obstruction if he wasn't the president. But you cannot say it's a crime."

Former FBI Director James Comey. (Photo: TheInquisitr) 

"As long as he exercises his constitutional authority, he cannot be prosecuted for exercising his constitutional authority," said Dershowitz.

Alan Dershowitz, 78, is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School. Over the years, he has represented clients such as Mike Tyson, Patty Hearst, O.J. Simpson, Claus von Bulow and Jim Bakker. He won 13 of 15 murder and attempted murder cases.

Dershowitz is a strong supporter of the Democratic Party. He has been honored with several awards, including a Guggenheim Fellowship, the Soviet Jewry Freedom Award, the Menachin Begin Award, and with numerous honorary doctorates.  Dershowitz is a regular contributor to and political analyst for CNN. He is married and has three children. 

Michael W. Chapman
Michael W. Chapman
Michael W. Chapman