The Criminalization of Politics, Obstruction, and Trump: A Reply to Professor Dershowitz

If you've been reading this blog for a while or have been following me on Twitter, you know I've been engaged in a bit of a back-and-forth with Harvard Law professor Alan Dershowitz. Dershowitz has emerged as one of the leading critics of the Robert Mueller investigation into the Trump campaign and possible Russian meddling. Professor Dershowitz argues there is no evidence of a crime and no basis for a criminal investigation. More broadly, he believes Mueller's investigation is the latest example of the criminalization of politics: what he sees as a troubling tendency by both political parties to use criminal law to attack political opponents.

Last week Dershowitz published an op-ed in the New York Times about this issue, and I published a reply in the Washington Post. But the argument about politicization is just the latest in a series of claims Dershowitz has made arguing there is no basis for Mueller's investigation. In this blog post I'll review the arguments Dershowitz has been making over the past few months and my responses to those arguments.

The Argument about Collusion

Dershowitz has repeatedly argued that collusion is not a crime.  He claims that if Trump campaign officials colluded with Russians to influence the campaign that might be deplorable but would not be criminal. The remedy for any such misconduct, he says, should be at the ballot box, not in criminal court. Therefore, he concludes, there is no basis for the Special Counsel's investigation.

This argument is really a smokescreen. It's true there is no crime called "collusion" -- but that's not what Robert Mueller is investigating. The criminal counterpart to collusion is conspiracy - an agreement to commit some other criminal offense. The Special Counsel likely is investigating a number of potential conspiracies, which could include conspiracy to defraud the United States, conspiracy to violate federal election laws, or conspiracy to engage in computer hacking.

He is also investigating a number of potential related cover-up crimes, which could include false statements or perjury by various campaign officials who may have lied about or failed to disclose contacts with Russian individuals. Those already convicted of cover-up crimes include former campaign aide George Papadopoulos, whose guilty plea was unsealed in October, and former National Security Advisor Michael Flynn, who pleaded guilty last Friday.

In this post, Yes, Colluding with Russians to Interfere with the Election is a Crime, I discussed the various conspiracy charges that might be implicated by the allegations in the Russia investigation. In Lying on a Security Clearance Form: The Crime of False Statements, I discussed the criminal implications for individuals such as Jared Kushner or Jeff Sessions if they willfully failed to disclose contacts with Russian nationals when they completed their security clearance applications.

The Obstruction of Justice Argument

Back in June I wrote a post called Trump and Obstruction: What Alan Dershowitz gets wrong. Dershowitz has argued (and continues to argue, including in the most recent New York Times piece) that president Trump could not be charged with obstruction of justice for firing James Comey or trying to interfere with the investigation of Michael Flynn. He points out that the president, as head of the Executive Branch, has the unquestioned power to fire the FBI director and to oversee investigations by the Justice Department. To charge the president with obstruction for these actions, he argues, would be an unconstitutional infringement of the president's powers. President Trump's attorney John Dowd has recently adopted this argument, claiming that as head of the Executive Branch the President cannot be charged with obstruction.

Dershowitz believes the president could not be prosecuted for obstruction based on these actions no matter how corrupt his motive. Even if the government could prove beyond a shadow of a doubt that Trump fired Comey because he knew Comey was closing in on him and he wanted to try to thwart the investigation, Dershowitz claims that would not be obstruction.

But as I pointed out in that June post, things that one otherwise has a lawful right to do can become criminal obstruction if they are done with corrupt intent. I have a right to destroy my laptop, but if I do it because it's been subpoenaed by the grand jury and I'm trying to get rid of incriminating evidence, that lawful act becomes obstruction. The same is true of firing the FBI director: the President has the right to do it, but not if he does it with the corrupt intent to obstruct justice.

Dershowitz agrees that if the president took a bribe in exchange for firing Comey, that could be prosecuted. But there is no logical reason for treating obstruction of justice differently. In the bribe scenario, the otherwise lawful act of firing the director becomes a crime due to the corrupt motive that underlies that action. The same is true for obstruction.

Dershowitz argues that to charge Trump with obstruction for firing Comey or seeking to influence the investigation would be to prosecute him for "constitutionally authorized acts." This amounts to a claim that the constitution authorizes the president to corruptly shut down any investigation into his own potentially criminal behavior. I think Madison would be surprised. Dershowitz has offered no legal authority for the extraordinary proposition that when it comes to the crime of obstruction of justice, the president of the United States is immune and above the law unless he also engages in some additional criminal act.

Whether a sitting president can actually be indicted and prosecuted is a separate question, and I'm not dealing with that here. It may be that if Trump obstructed justice the only appropriate remedy is impeachment, not prosecution. But as long as we live in a country governed by the rule of law, it can't be the case that the ordinary rules of obstruction of justice law do not apply to the president.

The False Comparisons to Hillary Clinton

The next post where I took issue with Dershowitz was based on his comparison of the allegations against the Trump campaign and allegations involving the Democrats' involvement in the preparation of the infamous Trump Russian "dossier." Dershowitz has been using the two cases as examples of what he claims is the criminalization of politics, arguing that neither case is appropriate for a criminal investigation.

In my post, Trump, Clinton, and the Russia Dossier: Fallacies and False Comparisons, I pointed out that the two cases involved very different facts and how, while the allegations about Russia and the Trump campaign fully justify a criminal investigation, the allegations about the dossier do not. This led to an interesting exchange on Twitter between two Harvard Law School titans (and Twitter titans as well), Dershowitz and professor Larry Tribe. Tribe tweeted out my post:

Which led Dershowitz to respond:

Actually that response itself proved my point: Dershowitz is asserting that the two cases are on equal footing and deserve to be treated equally. And just a week earlier on Twitter, Dershowitz had made exactly the comparison that he later denied:

Facts matter. Opponents of the Trump investigation can't simply say "Well, what about Hillary?" without discussing the facts and allegations involved. The two cases are not at all the same. Based on what we know so far, a criminal investigation into the dossier would be unjustified. As I explained in the post, the same is definitely not true when it comes to Russia and the Trump campaign.

The "Criminalization of Politics" Claim

The latest round took place last week in the pages of the New York Times and the Washington Post. In a Times op-ed titled "When Politics is Criminalized," Dershowitz repeated many of the same arguments he has been making about the Mueller investigation, as well as his broader argument about political prosecutions in general. He claimed the Mueller investigation is simply one example of what he sees as an increasing practice of using criminal law to attack political enemies. He also repeats some of the arguments discussed and refuted above, about how the president could not be charged with obstruction and how calls for investigations of Hillary Clinton are essentially on the same footing as calls to investigate the Trump campaign.

The Washington Post published my response,  "No, the Mueller probe isn't politically motivated".   As I noted in that piece, Dershowitz's underlying concern is valid, but the facts in this case and in the other examples that he cites simply don't back him up. It's true that criminal law should never be used for political purposes, but there's no evidence that Mueller's investigation suffers from that flaw.

The Latest Tweet from the President

The arguments about obstruction of justice were fueled this past weekend by the President's Tweet in the wake of Michael Flynn's guilty plea, in which he appeared to admit that he knew Flynn had lied to the FBI at the time when former FBI director James Comey says Trump asked him to back off the Flynn investigation.

This led to a flurry of activity over the weekend. Critics claimed the Tweet provided solid evidence that the President obstructed justice when he asked Comey to drop the investigation of Flynn. Trump's attorney John Dowd responded by claiming that he drafted the Tweet, not the president, and in any event that the president can't be charged with obstruction of justice. 

Dershowitz was back as well, this time on Fox News, claiming the president is immune from obstruction - which led to this presidential Tweet:

No doubt these debates are going to continue and only become more heated as Mueller appears to close in on the president's inner circle.