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Two Strikes for Alan Dershowitz: Why Donald Trump is not Exempt from Investigation for Obstruction of Justice

June 11, 2017

For the past several days, Alan Dershowitz has repeatedly maintained that President Trump cannot be found to have obstructed justice through his one-on-one meeting, or other interactions, with former FBI Director James Comey. See, e.g., here and here. Comey has now testified before the Senate Judiciary Committee that at that meeting, Trump encouraged him to leave former National Security Advisor, Michael Flynn, alone. Dershowitz maintains that because Trump could have directly ordered Comey not to investigate Flynn, and because Trump could have pardoned Flynn (indeed he still can), there is no plausible constitutional basis for claiming that what Trump actually did, namely covertly discouraging Comey from any further investigation of Flynn, constitutes obstruction of justice. Dershowitz is not defending the merits of what Trump did; he is, however, saying that it cannot form the basis for any criminal offense, as for example under 18 U.S. Code § 1503 - Influencing or injuring officer or juror generally, and that therefore, it is a distraction from the investigation into Russian interference in the 2016 election. With respect to that matter, Comey has testified that Trump was not under investigation. Putting that all together, then, under Dershowitz’s logic, Trump is home free since neither the Russia investigation nor any obstruction charge based on alleged interference in the Flynn investigation, provide a basis for going after Trump. This is also consistent with Trump’s claim that he feels fully vindicated by Comey’s testimony. See here

 

With respect, I believe Dershowitz is mistaken on two related, yet independent, grounds. NYU Law Professor Professor Richard Pildes has written a very thoughtful essay that helps to explain the problem with Dershowitz’s analysis, see here. I agree with much of Pildes's analysis. Here I will explain the central argument and flesh out what I believe warrants additional analysis. Pildes maintains that Dershowitz overlooks a landmark separation of powers decision, Morrison v. Olson, 487 U.S. 654 (1988), a case that I previously discussed in this blog, see here. That case involved a now-lapsed a federal statute that created a mechanism for appointing an Independent Counsel, meaning one the President does not control and who could not be terminated other than based on criteria and processes set out in the statute itself. My earlier analysis explained the difference between an Independent Counsel and a Special Council. The Special Counsel, by DOJ Regulation, is removable for just cause, but the President has the power to order the Attorney General (or in this instance, his subordinate, Rod Rosenstein), to fire him and also to fire the Attorney General. (Georgetown Law Professor Neal Katyal helpfully explains the removal restrictions here.) In effect, the Special Counsel is one remove from being under the President's direct control, unlike the Independent Prosecutor, who had greater insulation from Presidential removal authority. 

 

Dershowitz’s analysis rests on a credible, yet rejected, argument, that the President’s power to take care in executing the laws is unitary and complete, meaning not subject to externally imposed limitations, separate from what the Constitution itself provides. This rejected position would have disallowed imposing any limits in criminal investigations, including against the President himself or his closest advisors. This was the very position that the Supreme Court, with Chief Justice William Rehnquist writing for a majority of eight on a nine member Court, rejected in Morrison, which sustained the Ethics in Government Act against constitutional challenge and which facilitated the appointment of an Independent Counsel, whose tenure and jurisdiction is independent of the President’s control. To be sure, that statute has since lapsed. For that reason, Deputy Attorney General Rod Rosenstein (with Attorney General Jeff Sessions recused) appointed Robert Mueller, III as a Special Prosecutor. As explained above, the President can terminate Sessions, and order Sessions (or Rosenstein) to terminate Mueller. The point is not that Mueller is Independent; he is not. Rather, it is that under Morrison, the President does not hold all the constitutional cards respecting any and every federal criminal investigation, especially respecting those operating at the highest levels, himself or his inner circle. Justice Scalia, wrote a powerful dissent in Morrison in which he made the unitary executive argument, although, as I will explain, I think that there is a credible argument that Scalia's position in Morrison would not have aligned him with Professor Dershowitz's analysis respecting Donald Trump. 

 

The President can be insulated from criminal investigations without violating his delegated constitutional powers. This much is clear. In fact, however, there is no Independent Counsel, and so Congress has not formally insulted the President from his prosecutorial powers by statute even though it had, and still has, the power to do so. This returns us to Dershowitz’s claim resting not on a federal statute, but on the Article II, section 1, cl. 1, which states: "The executive Power shall be vested in a President of the United States of America." Dershowitz claims that that absent a statutory limit on the President's executive powers, because Donald Trump (1) could have terminated Comey, and (2) could have pardoned Flynn, there is no basis for claiming that what he actually did, namely having a private meeting admonishing Comey to leave Flynn alone, constitutes obstruction of justice. Along with Pildes, I think Dershowitz is mistaken, and I also think that the argument benefits from some additional analysis. 

 

Dershowitz provides a classic “greater includes the lesser” argument. Because the President can fire or pardon, surely he can cajole on the not-so-subtle threat of “if you don’t take the hint, then I’ll fire you.” There is a surface level appeal to greater-includes-lesser arguments, but they rest on implicit conditions that do not always apply. (For an excellent 1994 law review article by Cardozo Law Professor Michael Herz that explores the theme, see here.) The problem is that for such arguments to work, the lesser must actually be subsumed in the greater, meaning that the seeming lesser activity, here cajoling with an implicit threat, rather than outright ordering or outright pardoning, carries with it all the elements that would also be included in the greater, admittedly lawful, exercise of Presidential power. In this instance, the predicate fails to hold. Here is why:

 

If the President had ordered Comey not to investigate, and if Comey had been asked if the Flynn investigation was ongoing, Comey would have had to answer, “no.” If asked why, he would have had to explain, “because I am under Presidential orders not to do so.” Similarly, if President Trump had pardoned Flynn, that too would have prevented the ongoing investigation into Flynn’s conduct, although since Flynn would then be immune from prosecution, it would not allow Flynn to claim the Privilege against Self Incrimination if called upon to testify. If asked the same question, Comey would have given the same answer: he is not investigating Flynn because the FBI lacks the authority to pursue a criminal charge against someone immune to criminal sanction. Either pardoning Flynn or ordering an end to the investigation would have been public events, or would have led to clear public disclosure, making plain that the ultimate decision rested with the President alone. Either would have been out the open, subject to media scrutiny and challenge. And either way, the President would have been held politically accountable. 

 

Instead, President Trump admonished Comey privately, in a White House room from which Trump expelled his top advisors, and he did so in a way that was indirect, encouraging Comey to make his own seemingly independent decision not to pursue Flynn, when in fact, the decision would have been the product of non-subtle coercion—do as I request, or risk being fired. The issue of obstruction of justice is separate from whether the President can fire Comey, pardon Flynn, or order the end to an ongoing investigation. To be clear, there is an open legal question as to whether the relevant obstruction statutes cover FBI investigations, or whether such a claim would have to be linked to another pending judicial proceeding, see here. The argument I am making here is that the issue is not going to be resolved based on an argument that the greater includes the lesser. These rest along separate analytical dimensions. (For my earlier discussion of dimensionality, see here.) That is because the greater demands political accountability. The lesser—which for this very reason is not actually lesser—deliberately sought to avoid political responsibility by shifting political responsibility onto another person, here former FBI Director, James Comey. 

 

Justice Scalia is no longer alive, but I think that there is good reason to imagine that he too would reject the argument that as applied here, the greater includes the lesser, and for one critical reason: his Morrison v. Olson dissent was precisely grounded on having a backstop of Presidential political accountability. He took the position that if the President terminates a prosecutor, as Richard Nixon did with Archibald Cox, we may or may not like the result, but the President will be politically accountable. That is among the reasons why I have maintained with my students over the years that Scalia’s dissenting Morrison analysis is compelling. Here Trump sought to avoid just such responsibility, instead insisting on loyalty, meaning, contrary to Harry Truman, demanding that others take over kitchen duty so that he can avoid the heat. 

 

If Congress determines that such avoidance constitutes obstruction of justice for purposes of an impeachment proceeding, or that it fits within the confines of the relevant federal statute, that is within its power. Impeachment is ultimately a political process. It is mistaken to argue, as Dershowitz has repeatedly, that Congress's or the FBI’s obstruction investigation is a distraction. Investigations, whether by an independent counsel, a special prosecutor, or by the Senate Judiciary Committee are critical in furthering the role that Congress as a whole ultimately plays in checking against potential abuses of executive power. For now, it is important to let Robert Mueller and the Senate Judiciary Committee do their jobs.

 

I welcome, as always, your comments.

 

Comment: I have updated this on June 11 at 10 am to reflect some helpful comments from Rick Pildes.

 

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