Dershowitz: It's Not Obstruction of Justice for Trump to Exercise His Constitutional Authority

By Susan Jones | December 4, 2017 | 10:18am EST
Alan Dershowitz is a Harvard Law School professor and author of the book "Trumped Up." (Photo: Screen grab/Fox News)

(CNSNews.com) - Retired Harvard Law School Professor Alan Dershowitz said a constitutional crisis would erupt if Congress tries to charge President Trump with obstruction of justice for exercising the authority granted to him under Article II of the Constitution.

He spoke to "Fox & Friends" on Monday morning:

 



You cannot charge a president with obstruction of justice for exercising his constitutional power to fire Comey and his constitutional authority to tell the Justice Department who to investigate, who not to investigate. That's what Thomas Jefferson did, that's what Lincoln did, that's what Roosevelt did. We have precedents that clearly establish that.

When George Bush the first pardoned Casper Weinberger in order to end the investigation that would have led to him, nobody suggested obstruction of justice. For obstruction of justice by the president, you need clearly illegal acts. With Nixon, hush money paid; telling people to lie; destroying evidence. Even with Clinton they said that he tried to influence potential witnesses not to tell the truth.

But there's never been a case in history where a president has been charged with obstruction of justice for merely exercising his constitutional authority. That would cause a constitutional crisis in the United States, and I hope Mueller doesn't do that and Senator Feinstein simply doesn't know what she's talking about When she says it's obstruction of justice, to do what a president is completely authorized to do under the Constitution.

Sen. Dianne Feinstein (D-Calif.) on Sunday told "Meet the Press" she believes Trump's firing of former FBI Director James Comey was obstruction of justice, and she said that appears to be the direction the investigation is heading.

Dershowitz on Monday said President Trump could have pardoned Flynn if he really wanted to end the special counsel's criminal investigation:

"He (Trump) would have pardoned Flynn and then Flynn wouldn't be cooperating with the other side, and the president would have had the complete authority to do so, and Flynn never would have been indicted, never would have turned as a witness against him," Dershowitz said.

"So I think the fact that the president hasn't pardoned Flynn, even though he has the power to do so, is very good evidence there's no obstruction of justice going on here."

Dershowitz also said Flynn was "right" to speak to the Russian ambassador during the transition and urge him to vote against a U.N. resolution criticizing Israel.

"I think he did absolutely the right thing by trying to stop the president, lame duck, from tying his hands."

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