Politics

Harvard Legal Icon Doubts Trump Pardon Narrative

Alan Dershowitz says obstruction of justice cannot apply to a president who is exercising constitutionally authorized powers

Famed Harvard University law professor Alan Dershowitz disputed a Democratic senator’s contention Thursday that a reported pardon discussion involving President Donald Trump’s lawyer amounts to “textbook” obstruction of justice.

The New York Times reported Wednesday that John Dowd, who was then representing the president in special counsel Robert Mueller’s investigation into Russian meddling in the 2016 election, floated the idea of a presidential pardon for former national security adviser Michael Flynn and former campaign boss Paul Manafort in conversations with their attorneys.

Sen. Richard Blumenthal (D-Conn.) reacted harshly.

“This kind of obstruction of justice is literally happening in real time before our eyes,” he said.

Dershowitz, an emeritus professor at Harvard Law School, said the pardon — in and of itself — cannot be obstruction.

“It all depends on what the conversations was, obviously,” he said.

“You can’t commit a crime by engaging in constitutionally protected action. That seems like textbook law.”

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Dershowitz noted that Lawrence Walsh, who was the special prosecutor investigating the Iran-Contra affair, loudly objected when then-President George H.W. Bush pardoned former Secretary of Defense Caspar Weinberger and five other officials.

Walsh flatly accused Bush of trying to shut down the investigation.

“But no one suggested that the president of the United States could commit obstruction of justice by pardoning anybody,” Dershowitz said. “You can’t commit a crime by engaging in constitutionally protected action. That seems like textbook law.”

That is not to say that anything goes related to the use of a pardon, Dershowitz said. For instance, he added, an explicit “quid pro quo” — an offer of a pardon in exchange for an agreement not to cooperate with Mueller — would be improper.

But in that case, it would be the quid pro quo — not the pardon — that would be problematic, Dershowitz said.

Dershowitz noted that Dowd has denied the New York Times story. Dershowitz said he finds it hard to believe that it occurred.

“No sophisticated lawyer is gonna have that kind of conversation,” he said.

Reacting to reports that the Office of the Inspector General of the Justice Department is opening an investigation into that handling of the Foreign Intelligence Surveillance Act (FISA) process by members of Barack Obama’s administration, Dershowitz said he opposed appointing a second special counsel.

Except in extraordinary circumstances, he said, career lawyers at the Justice Department should oversee investigations.

“The difference is career officials in the Justice Department don’t get paid to find crimes and make cases and stretch the law where it doesn’t exist,” he said. “Where a special counsel, giving people targets on their back. It’s the … Stalin approach — show me the man, and I’ll find you the crime.”

Host Laura Ingraham asked whether it poses a legal problem that Obama chief of staff Denis McDonough reportedly was monitoring the counterintelligence investigation involving Trump campaign advisers.

“It’s a political problem when you have the White House being briefed about these kinds of ongoing investigation, because traditionally there’s been separation between Justice and the White House,” he said. “That separation is breached all the time, and it was breached, certainly we know, by the Obama White House.”

Goodlatte Sees ‘Stunning’ Contrast Between Clinton, Trump Investigations

Dershowitz said he is skeptical of suggestions that a nondisclosure agreement Trump’s lawyer negotiated with porn star Stormy Daniels amounts to an illegal campaign contribution. He also said it would be “absurd” and “terrible” if Mueller were to expand his probe into the alleged affair Trump had with Daniels.

But Dershowitz said Trump is wise to keep a low profile publicly about the matter and avoid getting pulled into a deposition.

“The last thing the president of the United States should ever do is sit down and be deposed in a he said/she said sexual accusation situation,” he said.

Dershowitz called for an end to partisan bickering.

“I don’t like that there’s a Democratic truth and Republican truth,” he said. “There’s one kind of truth. And let’s get to it.”

PoliZette senior writer Brendan Kirby can be reached at [email protected]. Follow him on Twitter.

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