Alan M. Dershowitz, a law professor at Harvard,
wrote on FoxNews.com Wednesday
that President Trump has the constitutional right to direct his FBI
director to stop an investigation of anyone “by simply pardoning that
person.”
“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,”
Dershowitz wrote. “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.”
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Dershowitz wrote the column after
fomer-FBI Director James Comey's prepared remarks were released ahead of his appearance on Capitol Hill on Thursday.
Comey
is set to testify that Trump sought his “loyalty” and asked what could
be done to “lift the cloud” of investigation shadowing his
administration. The prepared remarks detail a series of conversations
between Trump and Comey about the investigation into contacts between
the Trump campaign and Russia, and Comey's discomfort with the
interactions.
Other legal experts say the most damning statement
in Comey's written testimony concerns former National Security Adviser
Mike Flynn, who was under investigation for making false statements
about contacts with Russian officials.
Trump asked Attorney
General Jeff Sessions and other top government officials to leave the
Oval Office on Feb. 14 before urging Comey to drop the investigation of
Flynn. "I hope you can let this go," Trump said, according to Comey's
testimony.
Dershowitz, however, wrote that the written statement
“does not provide evidence that President Trump committed obstruction of
justice or any other crime.”
Obstruction of justice is a federal
crime, though it's an open question whether a sitting president can be
prosecuted. It's also an impeachable offense, though Republicans who
control Congress are extremely unlikely to go after a president of their
own party.
Dershowitz wrote, “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.”
Other legal experts see the statement differently.
Julie
O'Sullivan, a former federal prosecutor who teaches at Georgetown
University's law school, told the Associated Press Trump's decision to
clear the room before talking to Comey is evidence that suggests that
Trump "was aware that what he was doing was a problem."
Trump has previously denied that he told Comey to end the investigation.
A
former FBI official and a prominent Washington, D.C., law professor
told the AP that they don't see a crime in what Comey reported that
Trump said. Instead, the document reveals a president woefully ignorant
of standard protocol and of the historic wall of independence between
the FBI and the White House, an inexperience that could work in his
favor and make his actions simply improper instead of actually illegal.
"I
think the request is inappropriate," said Andrew Arena, a retired
senior FBI official. "Whether it crosses that threshold to being
criminal, I'm not there yet."