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Speaking of senile hackery

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Even the Liberal Alan Dershowitz is spouting a bunch of nonsense about how, since the POTUS has the legal authority to fire the director of the FBI, exercising that authority can’t be obstruction of justice by definition.

This makes about as much sense as arguing that since the president has the legal authority to command the armed forces, ordering the army to kill his political opponents can’t be murder.

Now the intersection between the criminal justice system and the office of the president is a murky area in the law. For example, t’s not clear whether a sitting president can be indicted for a crime while he’s in office, or if he can pardon himself. (It would be nice to think that there’s currently no formal resolution of these issues because the people who formulated these rules were innocent enough not to consider the possibility that anybody could be shameless enough to pardon himself). It’s certainly possible that the federal courts would hold that the POTUS can’t be prosecuted for obstruction of justice while still in office. But, as a practical matter, there isn’t the slightest doubt that Congress has an essentially un-reviewable power to decide what constitutes obstruction of justice for the purposes of impeachment and removal.

In short, the claim that the president can’t obstruct justice by doing an otherwise legal act is, if not quite frivolous in the formal legal sense, an obviously specious argument. It’s the kind of argument that should get somebody the lowest grade they give out these days at Dershowitz’s law school, which I understand is something like an A almost minus. To present it as a self-evident truth is either the epitome of bad faith, or a product of McCain-level cognitive deterioration.

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  • Domino

    This leads to some fun thought experiments:

    “Your honor, my client is a police detective. He’s allowed access to the evidence room and can take things out of it if he wishes. Therefore his removal of potential evidence that he committed a murder cannot be held against him”

    “Your honor, my client is allowed to shred documents at work. Therefore it’s impossible to find him guilty of destroy evidence of fraud, since the act of shredding paper is something he’s allowed to do”

    Come up with your own!

    • Donalbain

      Your honour, my client, a Dr Quincy ME is legally entitled to remove vital organs from people on a regular basis. This so-called murder charge is nothing but piffle and nonsense

    • catbirdman

      Mr. Gambino simply provided an opinion to the witness that Mr. Gambino believed the witness “had a nice little shop, a nice little family,” and that it would “truly be a shame if something bad happened to either of them.” Is it now illegal in the United States of America to express humanitarian concern for one’s fellow man?

    • Hummus

      The most amusing thing about this is that it’s not even an exaggeration of what Dersh is arguing here. How a law professor can argue with a straight face that something that is legal to do can never be obstruction of justice regardless of intent is quite honestly beyond me. This sort of argument would be laughed out of any 1L crim law class in the country.

      By the way, has anyone ever seen an actual academic work published by Dersh? I’ve looked at his publications list on Harvard’s website (link: http://hls.harvard.edu/faculty/directory/10210/Dershowitz/publications) and it has a total of 5 things, of which only two even look academic. Did he ever do anything other than appellate work and mediocre public commentary?

    • BiloSagdiyev

      “It’s okay, I’m a doctor.” – Hunter S. Thompson

  • Q.E.Dumbass

    Douche-a-shits is the centrist counterpart to America’s Dickhole Bill Maher. Or maybe El SUPERGENIUS is the quasi-left version of Douche-a-shits, whatever.

    Anyway, Douche-a-shits. Discuss.

    • I feel like I’m at the Algonquin Round Table.

      • Hummus

        This might be the best insult I have ever seen in a comment section. Kudos!

        • Thank you. But, I insist, it was meant in a spirit of good fun.

          • Q.E.Dumbass

            I got the reference but not the intent. That my original comment was hilariously juvenile?

      • lahtiji

        Which has now been moved into the bathroom.

  • Jon_H11

    What argument is there that he can’t pardon himself? The text seems straight forward in that it isn’t precluded and it makes sense for why they added the exception to pardoning powers for impeachments?

    • N__B

      What argument is there that he can’t pardon himself?

      The Founding Fathers did not approve of such unnatural sexual acts.

      • tsam

        Have you even MET Ben Franklin?

        • N__B’s Wallet

          Not as often as I would like.

          • BiloSagdiyev

            Oh, you’ve been too busy “shaking hands with Abraham Lincoln”, hunh?

            • Hogan

              You can call us Aaron Burr from the way we’re dropping Hamiltons

        • rea

          No, but I’m familiar with several of his illegitimate children, one of whom went over to the other side during the war . . .

        • Rob in CT

          He’s getting more and more recognition…

    • Paul Campos

      Various arguments could be made. For instance, courts could hold that pardoning is by necessity a bilateral act, in the same way that a contract requires at least two parties. Or that the fundamental legal principle that no one can be the judge in his own case precludes it, and is implicit in the constitutional structure.

      • Murc

        For instance, courts could hold that pardoning is by necessity a bilateral act, in the same way that a contract requires at least two parties.

        My understanding is that there’s a long legal tradition of recognizing, for various purposes, one single person as being separate entities or parties.

        • Jon_H11

          I think there was a good Kids in the Hall (Mr. Show maybe?) sketch were a man got a restraining order on himself.

          • trollhattan

            “Can Trump commit a crime so large that he, himself cannot pardon it?” I may have heard this before, somewhere….

            • BiloSagdiyev

              Oh, if George Carlin were here today, the things he’d say, venomously.

          • twbb

            Kids in the Hall; great sketch.

        • Just_Dropping_By

          My understanding is that there’s a long legal tradition of recognizing, for various purposes, one single person as being separate entities or parties.

          That generally requires the single person to hold two distinct legal statuses. (E.g. the same individual is a trustee of a trust and simultaneously a partner in a general partnership that is being engaged to provide services to the trust.) I don’t know if being “President of the United States” and “defendant” would count for that.

          • njorl

            Perhaps President Trump could pardon businessman Trump for stealing from a children’s cancer charity but couldn’t pardon President Trump for obstruction of justice.

      • Jon_H11

        On the first point it looks like Biddle v. Perovich establishes pardoning is a unilateral act: https://en.wikisource.org/wiki/Biddle_v._Perovich/Opinion_of_the_Court .

        “The opposite answer [consent by the convict] would permit the President to decide that justice requires the diminution of a term or a fine without consulting the convict, but would deprive him of the power in the most important cases and require him to permit an execution which he had decided ought not to take place unless the change is agreed to by one who on no sound principle ought to have any voice in what the law should do for the welfare of the whole.”

        There do seem to be conflicting cases on it though.

        • Just_Dropping_By

          That suggests it’s “unilateral” only in the sense that a pardoned party can’t refuse to accept the pardon. It’s doesn’t really answer the question as whether you need a distinction between the “pardoner” and the “pardonee” though. Paul’s point is based on the contract law principle that there must be a party who performs and a party who receives performance, which usually prevents a person from validly contracting with themself unless the person is doing so in legally different capacities.

        • Wapiti

          IANAL, but didn’t Burdick successfully refuse a pardon, arguing that accepting a pardon would be an admission of guilt? Or does Biddle v. Perovich overturn that?

          • Jon_H11

            I’m just a layman reading through them, but from the Perovich case: “We are of opinion that the reasoning of Burdick v. United States, 236 U.S. 79, 35 S.C.t. 267, 59 L. Ed. 476, is not to be extended to the present case. ”

            So, I guess it depends. If any lawyer is familiar with this it’d be interesting to hear about.

      • Hummus

        This seems like a strong argument. I’m not certain if it’ll win over the presidential immunity argument (i.e., “if a president is immune from civil liability, why shouldn’t he be immune from criminal? The proper means of dealing with criminal behavior by a president is impeachment”), but it strikes me as the better argument.

        • Breadbaker

          Venue matters. If all these acts took place in DC, he’s probably okay. If he does or did anything in New York, Andrew Cuomo doesn’t have to pardon him if the acts were also state crimes.

  • Murc

    It would be nice to think that there’s currently no formal resolution of these issues because the people who formulated these rules were innocent enough not to consider the possibility that anybody could be shameless enough to pardon himself

    My understanding has always been that the founders assumed the only way the president would ever find himself in the dock is if he was being impeached, and that’s the one thing he explicitly can’t pardon himself for. If Congress doesn’t feel like impeaching, then the imprimatur given the president by virtue of being elected the president allows them a wide degree of latitude when it comes to this sort of bullshit.

    In other words, it wasn’t innocence, it was pragmatism. Responsibility for holding the president to account rests in the hands of the Congress. If the president feels like he’s doing a good job, and Congress feels like he’s doing a good job, then the assumption is he has a mandate to keep on keepin’ on.

    • so-in-so

      I suppose the thinking is that you can always wait until he I out of office (either by impeachment or voted out) and then charge him when he no longer has any pardon power.

      • Kurzleg

        Who’s going to bother at that point? And what purpose would it serve? Deterrence?

        • so-in-so

          Huh? If the President committed a crime; murder, rape, major corruption; I don’t think people just let it go in four years?

          • Kurzleg

            Sorry, myopic response on my part. Trump’s obstruction was what I had in mind.

          • Lurking Canadian

            There were plenty of people arguing that it would have been wrong for Obama to attempt any prosecution of Bush or Cheney on the grounds that impeachment is the only process for overseeing a president’s behavior.

            And those two are war criminals and torturers.

        • Morse Code for J

          Let’s not overlook the value of simple retribution.

        • Lurker

          The Founding Fathers were classically educated. In the Roman Republic, magistrstes were immune to prosecution during their term of office, and were widely prosecuted afterwards. I think they thought that such after-the-term prosecution would be in “the interest of justice”.

    • Kurzleg

      “In other words, it wasn’t innocence, it was pragmatism. Responsibility for holding the president to account rests in the hands of the Congress. If the president feels like he’s doing a good job, and Congress feels like he’s doing a good job, then the assumption is he has a mandate to keep on keepin’ on.”

      I’m not a legal scholar, but this seems right to me. And regardless, it’s what’s going to happen in this situation. Those GOP senators may not like Trump, but their constituents still do. They can’t afford to impeach him, and so they run interference instead. It’s disgusting, but it’s how things are.

      I find Comey’s suggestion today that Mueller will determine whether Trump’s behavior amounts to obstruction of justice pretty laughable. Even if he did, there’s no chance Mueller will bring charges. Does Comey really believe what he says?

      • Just_Dropping_By

        Why would Mueller take the job in the first place if he thought there was no chance he would bring charges? He’s presumably getting paid a lot less for this gig for a lot more public criticism than what he was getting in private practice.

        • Kurzleg

          The investigation concerns whether the Trump campaign coordinated w/ Russia to influence the election. Easy to see how Mueller’s sense of duty would compel him to take the job and accompanying pay cut. Comey seems to think that Mueller will also look into the contention that Trump’s behavior constitutes obstruction of justice. To me, that doesn’t seem likely. It’s too peripheral to the core question(s) and too politically charged.

          • efgoldman

            The investigation concerns whether the Trump campaign coordinated w/ Russia to influence the election.

            I believe Mueller’s appointment/charge to investigate any crimes he may find.

          • Hummus

            That’s a sufficiently broad mandate to get an obstruction of justice charge. Keep in mind that Ken Starr was only supposed to be investigating Whitewater, before expanding into the firing of a few low level White House Travel Office employees over financial improprieties (which, of course, Republicans alleged were made up so that Hillary could staff the department with cronies and the media reported on as “Travelgate”), allegedly improper use of FBI files, Vince Foster’s suicide, the Paula Jones sexual harassment scandal, and finally Monica Lewinsky. Thinking that a relatively narrow prima facie mission will keep this from spiraling when there are lots of interrelated scandals within a broad reading of the mandate is historically incorrect.

        • Redwood Rhiadra

          Mueller’s job is to provide cover and run a sham “investigaation” after which they charge a couple of low-level interns with some minor crimes and exonerate Trump and all his important minions.

          • BiloSagdiyev

            Adjusted for modern American life:

            “charge a couple of low-level interns with some major crimes and exonerate Trump and promote all of his important minions. “

  • Terok Nor

    Maybe he’s a bit biased because he still thinks Trump is good for his country. And I don’t mean America.

  • Warren Terra

    I don’t get this. I’m licensed to dive a car, but that doesn’t mean there aren’t a whole bunch of ways I could drive it irresponsibly to an illegal degree, or even deliberately destructively. Context matters!

    More to the point: impeachment is not predicated on criminal offenses. “High crimes and misdemeanors” means whatever half the House says it does, especially if they can get 2/3 of the Senate to agree.

  • AlexRobinson

    Alan Dershowitz is a piece of crap.

    He’s been a piece of crap for quite some time

    • Judas Peckerwood

      Yeah, I guffawed when I read “Even the Liberal Alan Dershowitz…”

      The definition of “liberal” must have changed radically since I used it last.

      • Hob

        It’s a running joke – on lefty blogs at least, that phrase is only ever used sarcastically (hence the capitalization), meaning that a right-wing media personality might refer to Person/Publication X as “liberal” to give their bullshit a bipartisan gloss even though actual liberals would not claim X as their own, at least not these days. The original or at least best-known reference was to The New Republic.

        • Judas Peckerwood

          Oy, I need to get out more.

          • Q.E.Dumbass

            Of course, ever since Peretz lost control of the The New Republic its errors are typically in the opposite direction. It’s now a more appropriate appellation for the Pinch-helmed New York Times.

    • efgoldman

      Alan Dershowitz is a piece of crap.

      Dersh was once great on civil liberties. Then he jumped into W’s torture pool.

      Fuckem

  • Davebo

    Makes you wonder why Nixon resigned!

    • efgoldman

      Makes you wonder why Nixon resigned!

      Sarcasm?
      The political pressure was incredible. The buildup of two years of revelations, over sixty indictments, almost fifty convictions, including two attorneys general, his top two WH aides, his VP (separately), WH counsels….
      and then the tapes came out!
      When Goldwater (!) is the guy that goes to the WH and tells you it’s over….
      Tricksie was a lot of things, but unlike Orange Furious, he was not delusional.

      • BiloSagdiyev

        Yes. Say what you want about his twisted psyche and bankrupt morals, in hindsight, I appreciate how smart he was, and generally aware of the facts on the ground. Today’s GOP is just scoring badly on all metrics.

        • efgoldman

          I appreciate how smart he was, and generally aware of the facts on the ground.

          He was actually a brilliant politician; he used his brilliance to malign ends.

          • BiloSagdiyev

            Yes. Sometimes you have to remind yourself that he went from Congressman to Senator to VP in the time frame of 1947-1953.

      • Dave W.

        Also, there was the practical consideration that if Nixon resigned, he would get to keep his presidential pension, while after impeachment and conviction he would lose it. When Goldwater told him that the votes were no longer there to stop conviction in the Senate, Nixon could do the math. Whether or not that particular pressure would work with Trump remains to be seen.

        • twbb

          He could have been a pioneering figure in wingnut welfare, though.

          • BiloSagdiyev

            I hadn’t thought of that. I just assumed he would have become a ward of the Rebozo.

        • randy khan

          The pension point might convince Trump, actually.

  • Lost Left Coaster

    To present it as a self-evident truth is either the epitome of bad faith, or a product of McCain-level cognitive deterioration.

    Yeah…I’m definitely going to vote for the former.

    • GeorgeBurnsWasRight

      Hey, could be both.

  • twbb

    Hey, show some respect and use Dershowitz’s formal title of “Torture Apologist” next time.

  • Mike in DC

    For some reason, my former torts professor Jonathan Turley has hopped inside the “no obstruction” clown car. Disappointing, but not the first time he’s taken a contrarian position. Jeffrey Toobin and Laurence Tribe don’t seem to agree, however.

  • LFC

    George Terwilliger on the PBS NewsHour earlier this evening (loose paraphrase but gets the essentials of the statement):

    Constitution…unitary executive…something something…President can’t commit a crime…

    Me to myself: Wait, did I just hear a former acting attorney general say that the President can’t commit a crime? What the fu*k did Nixon do? An inadvisable non-criminal act? (And that’s just the first Pres. that came to mind — the list cd be lengthened.)

  • Breadbaker

    When the Constitution was written, I doubt very much they ever envisioned a federal criminal code of the size it has grown. Most of the crimes a President could commit would have been state crimes, for which he could not pardon himself.

  • Bruce Vail

    Did anybody see the 1990 movie ‘Reversal of Fortune’ about the idealistic Dershowitz’ brilliant legal defense of the innocent charmer Claus von Bulow?

    I saw it 1991. Ever since, I have been quick to change the channel whenever Dersh appears on TV.

  • DonnaK

    Today on Greta Van Susteren’s show, he argued that the president has plenary authority to quash investigations anytime he feels like it for any reason. Dershowitz is advocating for complete presidential unaccountability. In other words, autocracy.

  • SqueakyRat

    Rod Blagojevich had the power to appoint anyone he wanted to Obama’s Senatorial seat. So why couldn’t he appoint the winner of an auction?

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