Dershowitz: Pardoning People Not Impeachable Offense

Agent knew he was biased as he investigated Michael Flynn and Trump admin, Harvard professor tells 'The Ingraham Angle'

by Jim Stinson | Updated 08 Dec 2017 at 9:52 AM

The FBI agent who altered former FBI Director James Comey’s assessment of Hillary Clinton’s private email server should be “severely punished,” said Alan Dershowitz, the retired Harvard University law professor.

FBI agent Peter Strzok changed the wording in Comey’s assessment from “grossly negligent” to “extremely careless,” a key change in legal terms that softened the case against Clinton.

Strzok also helped open the counterintelligence investigation into President Donald Trump's campaign, to examine possible ties to Russian hackers. Strzok was found by the Office of Special Counsel to have mocked Trump, in text messages, during the 2016 presidential campaign.

In July, Strzok was removed to other duties, away from Robert Mueller's investigation, after the FBI inspector general found out about the text messages. The news about Strzok's removal, to a position in FBI human resources, was disclosed Saturday in The New York Times.

Strzok was present during the questioning of Michael Flynn, the former national security adviser, according to reports, raising the issue of bias in the investigation of the Trump administration.

"He should have recused himself," said Dershowitz, speaking to Fox News host Laura Ingraham. "And I think he should be severely punished ... He knew he had a bias."

Ingraham noted the Democrats would be going bananas if an FBI agent with an anti-Democratic bias had been looking into Hillary Clinton.

On the issue of Flynn, Dershowitz, the longtime civil rights attorney, said presidents can discuss pardons, fire people, and do other things that special prosecutors believe obstruct justice.

"In order to be charged with obstruction of justice, you have to go beyond simply exercising a presidential prerogative under Article II of the Constitution," said Dershowitz Monday on Fox News' "The Ingraham Angle." "If you bribe or take a bribe, if you destroy evidence and do what Nixon did, which is pay hush money or tell your subordinates to lie, of course you can be charged with obstruction of justice."

Presidents Richard Nixon and Bill Clinton were both charged with obstruction of justice, Dershowitz pointed out.

"But you cannot be and should not be charged with obstruction of justice if you merely pardon people," he added. "You merely fire people, even if the prosecution believes your intentions are not good. That's what George H.W. Bush did. He pardoned Caspar Weinberger and five other people. The special prosecutor said the intent was to stop the investigation of Iran-Contra. It succeeded. And nobody suggested that President Bush be charged."

Democrats have revived criticism of President Trump for reportedly telling former FBI Director James Comey that he hoped the agency could pass on charging Michael Flynn, the former national security adviser. Flynn resigned on February 13 after less than a month in office because he misled Vice President Mike Pence on a phone call a year ago with the Russian ambassador.

"No president in history has ever been charged for any crime or anything because he exercised his constitutional prerogative."

Flynn made the phone call during the presidential transition. But his call was recorded and leaked, and the FBI asked Flynn about it on January 24. On Friday, Flynn pleaded guilty to one count of misleading the FBI on the matter.

Dershowitz said Trump has the right to discuss the case with the FBI director. Comey's replacement would later testify to Congress that the agency has not been obstructed in the Russian investigation.

"He can't be charged with obstruction merely for exercising his constitutional prerogatives," said Dershowitz. "That's an important distinction. No president in history has ever been charged for any crime or anything because he exercised his constitutional prerogative. They impeached President Andrew Johnson for doing that. And the Supreme Court ultimately ruled that that was absolutely wrong. The president had the authority to fire the secretary of the Army. He was impeached for that and wrongly impeached."

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