History, Precedent and Comey Statement Show that Trump Did Not Obstruct
Justice
by Alan M. Dershowitz
June 8, 2017 at 9:15 am
https://www.gatestoneinstitute.org/10497/trump-comey-obstruction-justice
The statement may provide political ammunition to Trump opponents, but
unless they are willing to stretch James Comey's words and take Trump's out
of context, and unless they are prepared to abandon important constitutional
principles and civil liberties that protect us all, they should not be
searching for ways to expand already elastic criminal statutes and shrink
enduring constitutional safeguards in a dangerous and futile effort to
criminalize political disagreements.
The first casualty of partisan efforts to "get" a political opponent —
whether Republicans going after Clinton or Democrats going after Trump — is
often civil liberties. All Americans who care about the Constitution and
civil liberties must join together to protest efforts to expand existing
criminal law to get political opponents.
Today it is Trump. Yesterday it was Clinton. Tomorrow it could be you.
In 1992, then President George Walker Bush pardoned Caspar Weinberger and
five other individuals who had been indicted or convicted in connection with
the Iran-Contra arms deal. The special prosecutor, Lawrence Walsh, was
furious, accusing Bush of stifling his ongoing investigation and suggesting
that he may have done it to prevent Weinberger or the others from pointing
the finger of blame at Bush himself. The New York Times also reported that
the investigation might have pointed to Bush himself.
This is what Walsh said:
"The Iran-contra cover-up, which has continued for more than six years, has
now been completed with the pardon of Caspar Weinberger. We will make a full
report on our findings to Congress and the public describing the details and
extent of this cover-up."
Yet President Bush was neither charged with obstruction of justice nor
impeached. Nor have other presidents who interfered with ongoing
investigations or prosecutions been charged with obstruction.
It is true that among the impeachment charges levelled against President
Nixon was one for obstructing justice, but Nixon committed the independent
crime of instructing his aides to lie to the FBI, which is a violation of
section 1001 of the federal criminal code.
It is against the background of this history and precedent that the
statement of former FBI Director James must be considered. Comey himself
acknowledged that,
"throughout history, some presidents have decided that because 'problems'
come from Justice, they should try to hold the Department close. But
blurring those boundaries ultimately makes the problems worse by undermining
public trust in the institutions and their work."
Comey has also acknowledged that the president had the constitutional
authority to fire him for any or no cause. President Donald Trump also had
the constitutional authority to order Comey to end the investigation of
Flynn. He could have pardoned Flynn, as Bush pardoned Weinberger, thus
ending the Flynn investigation, as Bush ended the Iran-Contra investigation.
What Trump could not do is what Nixon did: direct his aides to lie to the
FBI, or commit other independent crimes. There is no evidence that Trump did
that.
With these factors in mind, let's turn to the Comey statement.
Former FBI Director James Comey's written statement, which was released in
advance of his Thursday testimony before the Senate Intelligence Committee,
does not provide evidence that President Trump committed obstruction of
justice or any other crime. Indeed it strongly suggests that even under the
broadest reasonable definition of obstruction, no such crime was committed.
The crucial conversation occurred in the Oval Office on February 14 between
the President and the then director. According to Comey's contemporaneous
memo, the president expressed his opinion that General Flynn "is a good
guy." Comey replied: "He is a good guy."
The President said the following: "I hope you can see your way clear to
letting this thing go."
Comey understood that to be a reference only to the Flynn investigation and
not "the broader investigation into Russia or possible links to the
campaign."
Comey had already told the President that "we were not investigating him
personally."
Comey understood "the President to be requesting that we drop any
investigation of Flynn in connection with false statements about his
conversations with the Russian ambassador in December."
Comey did not say he would "let this go," and indeed he did not grant the
president's request to do so. Nor did Comey report this conversation to the
attorney general or any other prosecutor. He was troubled by what he
regarded as a breach of recent traditions of FBI independence from the White
House, though he recognized that "throughout history, some presidents have
decided that because 'problems' come from the Department of Justice, they
should try to hold the Department close."
That is an understatement.
Throughout American history -- from Adams to Jefferson to Lincoln to
Roosevelt to Kennedy to Obama -- presidents have directed (not merely
requested) the Justice Department to investigate, prosecute (or not
prosecute) specific individuals or categories of individuals.
It is only recently that the tradition of an independent Justice Department
and FBI has emerged. But traditions, even salutary ones, cannot form the
basis of a criminal charge. It would be far better if our constitution
provided for prosecutors who were not part of the executive branch, which is
under the direction of the president.
In Great Britain, Israel and other democracies that respect the rule of law,
the Director of Public Prosecution or the Attorney General are law
enforcement officials who, by law, are independent of the Prime Minister.
But our constitution makes the Attorney General both the chief prosecutor
and the chief political adviser to the president on matters of justice and
law enforcement.
The president can, as a matter of constitutional law, direct the Attorney
General, and his subordinate, the Director of the FBI, tell them what to do,
whom to prosecute and whom not to prosecute. Indeed, the president has the
constitutional authority to stop the investigation of any person by simply
pardoning that person.
Assume, for argument's sake, that the President had said the following to
Comey: "You are no longer authorized to investigate Flynn because I have
decided to pardon him." Would that exercise of the president's
constitutional power to pardon constitute a criminal obstruction of justice?
Of course not. Presidents do that all the time.
The first President Bush pardoned Caspar Weinberger, his Secretary of
Defense, in the middle of an investigation that could have incriminated
Bush. That was not an obstruction and neither would a pardon of Flynn have
been a crime. A president cannot be charged with a crime for properly
exercising his constitutional authority
For the same reason President Trump cannot be charged with obstruction for
firing Comey, which he had the constitutional authority to do.
The Comey statement suggests that one reason the President fired him was
because of his refusal or failure to publicly announce that the FBI was not
investigating Trump personally. Trump "repeatedly" told Comey to "get that
fact out," and he did not.
If that is true, it is certainly not an obstruction of justice.
Nor is it an obstruction of justice to ask for loyalty from the director of
the FBI, who responded "you will get that ('honest loyalty') from me."
Comey understood that he and the President may have understood that vague
phrase — "honest loyalty" — differently. But no reasonable interpretation of
those ambiguous words would give rise to a crime. 
 Many Trump opponents
were hoping that the Comey statement would provide smoking guns.
It has not.
Instead it has weakened an already weak case for obstruction of justice.
The statement may provide political ammunition to Trump opponents, but
unless they are willing to stretch Comey's words and take Trump's out of
context, and unless they are prepared to abandon important constitutional
principles and civil liberties that protect us all, they should not be
searching for ways to expand already elastic criminal statutes and shrink
enduring constitutional safeguards in a dangerous and futile effort to
criminalize political disagreements.
The first casualty of partisan efforts to "get" a political opponent —
whether Republicans going after Clinton or Democrats going after Trump — is
often civil liberties. All Americans who care about the Constitution and
civil liberties must join together to protest efforts to expand existing
criminal law to get political opponents.
Today it is Trump. Yesterday it was Clinton. Tomorrow it could be you.
Then-Director of the Federal Bureau of Investigation, James Comey, testifies
in front of the Senate Judiciary Committee, May 3, 2017, in Washington, DC.
(Photo by Eric Thayer/Getty Images)
Alan Dershowitz, Felix Frankfurter Professor of Law, Emeritus, at Harvard
Law School and author of "Taking the Stand: My Life in the Law" and
"Electile Dysfunction: A Guide for the Unaroused Voter."
Follow Alan M. Dershowitz on Twitter