“You should have been reading The Godfather,” Alan Dershowitz told Chris Cuomo on CNN’s New Day, rather than law books on the nature of obstruction of justice. Cuomo later picks up the theme by asking whether Donald Trump attempted to give James Comey “the baccio di tutti bacci” to Jeffrey Toobin, who says that we won’t know until we actually see the memo and get testimony about the nature of the conversation. But as Newsmax notes, Dershowitz believes that the controversy is more likely to provide full employment for pundits and constitutional experts than produce an indictment:
“Under the unitary executive theory, the president has the right to tell the FBI what to do,” Dershowitz told CNN’s “New Day” anchor Chris Cuomo, invoking a theory that holds the president possesses the power to control the entire executive branch of the government.
“Thomas Jefferson managed the trial against Aaron Burr. President [Lyndon B.] Johnson interacted with the Justice Department and FBI.”
However, he continued, the fact that Trump is president cuts both ways, Dershowitz continued.
“He has the power to tell them what to do,” said Dershowitz, but since the president also was the only person who could have fired Comey, it’s not clear if he obstructed justice if he suggested to Comey to “go soft” on former National Security Agency Director Michael Flynn, as Comey has suggested and written in a memo.
“This is a complex and difficult issue, which we will never reach,” said Dershowitz.
One point Dershowitz fails to mention is that the president is immune from prosecution while in office. In the clip, he suggests that even if House Republicans are inclined to look toward impeachment, they’d want an independent prosecutor to produce a bill of charges on which they could rely. However, Ryan Goodman pointed out today at Politico that a special prosecutor might be inapplicable due to two findings on presidential immunity. And an attempt to get around it could be stopped by Trump:
We may never find out because no prosecutor may ever go before a federal court—having nothing to do with the strength of the case. Why is that? Because the Executive Branch has told itself a constitutional story that it can’t prosecute a sitting president. According to a legal opinion issued by the Justice Department’s Office of the Legal Counsel in 1973 and reaffirmed in 2000, the president is immune from prosecution before a federal criminal court, and only one avenue exists to pursue a case against him: impeachment. …
Another option or accountability is in the offing, but it too involves a political decision rooted in Congress. Somehow miraculously overriding a presidential veto, Congress could pass legislation establishing an independent counsel. Members would also have to do so despite the long-standing DOJ view that a sitting president is immune from criminal prosecution in federal court. There are, to be sure, a wide range of scholarly views on whether the DOJ’s view is legally correct, but no court has squarely faced that question. In the final analysis, this is not a politically or legally assured path to go down.
Actually, impeachment would be easier. The House can impeach on a majority vote, and the president cannot veto it. If they were inclined to pass an independent counsel or commission, they’d already have the votes for impeachment. The Senate would have to convict and remove on a 2/3rds majority, but there again, the veto on the other option would have to have the same in both chambers to override the veto, so there’s not much point to it. It would be far easier to establish a bipartisan select committee in the House to review the material, produce its own articles of impeachment, and roll the dice.
Not that it’s going to happen, though, at least not unless something far more significant arises. As Dershowitz points out, the president does get to direct the FBI as part of his authority from the voters. As far as Comey’s firing goes towards establishing a motive for obstruction, that case is pretty weak. Three months passed between Trump’s “suggestion” and the firing, and the probe didn’t get shut down at all, which seems to negate the motive for obstruction.
How do we know that? Deputy FBI director Andrew McCabe testified six days ago that the White House had not tried to push for an end to any investigations at all. Pay close attention to the phrasing of the question from Sen. Marco Rubio:
“Has the dismissal of Mr. Comey in any way impeded, interrupted, stopped or negatively impacted any of the work, any investigation or ongoing projects at the Federal Bureau of Investigations,” Sen. Rubio asked.
“As you know Senator, the work of the men and women of the FBI continues despite any changes in circumstance, any decisions,” McCabe replied. He continued, “So there has been no effort to impede our investigation to date. Simply put, sir, you cannot stop the men and women of the FBI from doing the right thing, protecting the American people and upholding the constitution.”
If removing Comey didn’t stop “any of the work, any investigations,” then it’s tough to cast the firing as an obstruction of any kind, justice or not. (If it had, McCabe had a duty to report it in response to a direct question.) It may have been politically stupid to suggest letting a political crony off the hook, and then even more politically stupid to fire the same man three months later in what looks to be a fit of pique over a lack of attention to leak investigations while insulting him publicly and repeatedly, but political stupidity isn’t an impeachable offense.
That’s not to say that the message didn’t get received in another way. A DoJ official tells The Daily Beast’s Betsy Woodruff that they’re sick and tired of the leaks coming out of the Trump administration, and — mirabile dictu post-Comey — they’re all set to start cracking down on leakers. Those who have targeted the president should be very, very worried, another source source suggests:
Under intense pressure from the White House, the Justice Department is prepared to aggressively prosecute government officials who leak classified information. Justice Department officials told The Daily Beast that targeting leakers will be a priority during Jeff Sessions’ time as attorney general—a posture that will hearten national security hawks, while concerning advocates of whistleblower protections.
“As the Attorney General has said, the Department of Justice takes unlawful leaks very seriously and those that engage in such activity should be held accountable,” an official told The Daily Beast. …
“The fact that the president shared classified information with a foreign government official, in and of itself, is classified,” a former senior intelligence official told The Daily Beast. “So whoever was trying to burn him for thinking he’s doing something wrong actually is the only one that committed a crime here.”
And that might be the right move, Dershowitz wrote at US News this week:
Had President Donald Trump’s mistake remained a secret known only to our national security establishment (and of course the Russians ), the Islamic State group would probably never have learned of it. (Russia and the Islamic State are not exactly on speaking terms.) The Islamic State group learned about it only because current and former U.S. intelligence agents leaked it to the media, which published it. The Islamic State group may now use this information to track down and kill informers or double agents who may have provided the information to our ally. They may also speed up their plans to use laptops to blow up commercial airlines. None of this may have happened without the leak and publication.
The same may be true – though this is less certain – of our allies who secretly provide us intel, including the country that provided the intel that Trump disclosed to the Russians. The leak and publication may cause friendly intelligence agencies to be more cautious about sharing delicate material with us.
There can be little doubt, therefore, that the leak and publication of the Trump disclosures to the Russians may have caused more damage to our national security than the Trump disclosures alone had they remained secret. This reality raises fundamental questions about the costs and benefits of leaking and publishing leaks.
They’ll need a new FBI director to move on those priorities, as well as more of the openings at the DoJ filled. Woodruff notes, though, that Rod Rosenstein might be just the man for the job:
Rod Rosenstein, Sessions’ top deputy at the Justice Department, is no stranger to leak prosecutions; one of the most high-profile cases he worked on as the Maryland U.S. Attorney was the prosecution of James Cartwright, the former Vice Chairman of the Joint Chiefs of Staff, on charges related to leaking. The DOJ announced on Oct. 17, 2016 that Cartwright had pled guilty to making false statements to federal investigators. Obama pardoned him a few days before Trump’s inauguration, and before his sentencing.
Rosenstein, meanwhile, was unequivocal about his view that Cartwright deserved to do prison time.
We’ll see, but it’s a lot more likely that we’ll see a prosecution for the leaks than an indictment on Trump, or even a serious impeachment effort.