Special Counsel Robert Mueller reportedly is investigating President Trump for possible obstruction of justice. The investigation is in its early stages, but one prominent legal voice has already decided obstruction charges would be improper. Harvard Law professor Alan Dershowitz has been all over cable news, Twitter, and elsewhere, claiming a president cannot be charged with obstruction for firing the FBI director or trying to shut down an investigation. But Dershowitz’s arguments don’t hold up.

The Allegations of Possible Obstruction

The facts are familiar by now. Former FBI director James Comey provided more details in his recent testimony before the Senate Intelligence Committee. Among other things, Comey testified about the meeting where President Trump cleared the room and then told Comey he hoped he could drop the investigation of former national security advisor Michael Flynn.

When Comey didn’t drop the Flynn investigation, Trump fired him. Trump later admitted he acted at least in part because of Comey’s handing of the “Russia thing.” He also told Russian officials that firing Comey had relieved pressure Trump was feeling from the Russia matter. Comey himself testified he believes he was fired because of the Russia investigation.

Obstruction of justice occurs when someone corruptly impairs, obstructs or impedes the due administration of justice in an official proceeding, or endeavors to do so. Many observers, including the former U.S. Attorney for the Southern District of New York, believe Trump’s actions could potentially amount to obstruction. (For a deeper dive into the crime of obstruction and how a federal prosecutor would approach the case, see my earlier post here.)

Professor Dershowitz’s Argument

Professor Dershowitz disagrees. He argues that regardless of the reasons for Trump’s actions, they could not legally constitute obstruction of justice. He notes that the president, as head of the executive branch, has the constitutional authority to fire the FBI director. He also has the power, as the FBI director’s boss, to tell the director to halt a particular investigation. In fact, Dershowitz notes, Trump could have called in Comey and said, “I’m pardoning Flynn, you are to stop this investigation right now.”

Because the president has these powers, Dershowitz says, Trump’s actions could not be obstruction. Unlike committing perjury or threatening a witness, firing the FBI director or telling him to stop an investigation is something a president may lawfully do. Dershowitz claims obstruction of justice can never be based solely on a president exercising this constitutional authority as head of the executive branch.

Because the president’s actions were otherwise lawful, Dershowitz says, criminal charges necessarily would be based solely on what was on the president’s mind. And that, he claims, would be improper. In one article he argues, “Even assuming that Trump was improperly motivated in firing Comey, motive alone should never constitute a crime. There should have to be an unlawful act.” Elsewhere he argues that charging Trump would amount to prosecuting the president “based on what he was thinking rather than what he was doing.”

Dershowitz agrees Trump’s actions may have been unwise and may have political consequences. But absent evidence of some other crime, he says, they could not legally constitute obstruction of justice.

The Issue of Corrupt Intent

Dershowitz’s argument rests on his claim that it’s improper to make something a crime “based on what was in the President’s mind.” But a great deal of criminal law hinges on just that: what was in the defendant’s mind, or what was his intent. Dershowitz is correct that motive alone cannot be a crime. But often it is precisely the defendant’s motive, or intent, that makes an otherwise lawful act potentially criminal.

If I shred my business files because I’m cleaning out my office, that’s not a problem. But suppose I shred the same files because they have been subpoenaed and I don’t want to turn them over to the grand jury. The same action now becomes the crime of obstruction of justice, based on what was in my mind. I acted with corrupt intent, and my otherwise lawful act is now criminal.

Or to take an example from the current prosecution of Senator Bob Menendez: If I take a U.S. Senator on my private jet for a vacation at my Dominican villa because we are old friends, that’s perfectly innocent. If I take him on the same trip to influence him to intercede on my behalf in a dispute I have with the government, now I am acting with corrupt intent and the same actions may become bribery.

Dershowitz himself is inconsistent on this point. He agrees a president could be prosecuted if he lied to the FBI during an investigation, a violation of the False Statements statute, 18 U.S.C. 1001. But whether a false statement is a crime also depends on the defendant’s intent. If the president made a false statement to the FBI because he simply forgot some relevant facts or misunderstood the question, that would not violate the statute. To be criminal a false statement must be a knowing and deliberate lie. And to prove that intent, a prosecutor would have to prove what was in the president’s mind – the very thing Dershowitz claims is prohibited when it comes to obstruction.

Dershowitz argues that, “A president cannot be charged with a crime for properly exercising his constitutional authority.” I agree – but the key word is “properly.” If the president acts with the corrupt intent to save himself from legal jeopardy, he is not properly exercising his authority.

If Trump tried to thwart an investigation because he feared it might lead to him, that could be obstruction of justice. Contrary to Dershowitz’s claim, this would not amount to charging the president based on his motive alone. It would be based on his actions, which become potentially criminal when carried out with corrupt intent.

The Power to Pardon

Dershowitz also argues the president could have pardoned Flynn and ended the investigation that way. That’s true, but it’s beside the point. The issue then just shifts to whether the pardon was granted for a corrupt reason. The power to pardon does not include power to do so for criminal reasons. Nor does the greater power – the ability to grant a pardon – mean that the lesser power of influencing or halting an investigation may be done corruptly.

Dershowitz apparently believes a president never could be charged with obstruction based on granting a pardon. I don’t agree. Suppose prosecutors could prove a president pardoned someone in return for that person’s explicit promise not to testify against the president? Sounds like obstruction to me. The president can do it, and the pardon would be valid, but that doesn’t mean the president is immune from the legal consequences of his corrupt actions.

Dershowitz has argued, “Obviously if a president accepts a bribe in exchange for a pardon that is corrupt act, without regard to motive or intent.” But you can’t have a corrupt act “without regard to motive or intent.” It’s the defendant’s intent that makes an act corrupt in the first place. Without corrupt intent, there is no bribe. Granting a pardon in exchange for a bribe could indeed be the corrupt act of bribery — and granting a pardon to head off an investigation that was pointing toward the president could be the corrupt act of obstruction of justice.

The Iran-Contra “Precedent”

Dershowitz has repeatedly claimed (see here and here, for example) there is “precedent” supporting his view, and has challenged his critics to “distinguish that precedent.” He notes that President George H.W. Bush pardoned Caspar Weinberger, his secretary of defense, and five other individuals who were implicated in the Iran-Contra affair. Independent Counsel Lawrence Walsh was furious and suspected Bush may have acted to prevent those individuals from implicating Bush himself.

Dershowitz notes that Walsh did not charge Bush with obstruction of justice for those pardons. He claims this supports his argument that a President can never be charged with obstruction for exercising his constitutional powers, “regardless of his mental state.”

But a failure to bring a case is not “precedent,” at least not in the way lawyers usually talk about it. Lawyers refer to precedent in terms of authoritative court decisions or other formal legal opinions that analyze a particular legal question. A decision not to bring charges is not a precedent that can guide future cases.

For example, suppose I represented a police officer charged with shooting and killing an unarmed civilian. I could not cite as precedent other cases of deadly force where officers were not indicted and argue that means my client cannot be charged. The Independent Counsel chose not to indict Bill Clinton for perjury or obstruction after he survived impeachment. That does not establish a precedent that a president cannot commit those crimes.

Criminal cases are extremely fact-specific. There may be any number of reasons charges are not filed. In the Bush example, maybe Walsh decided, despite his personal anger and disappointment, that the evidence of Bush’s corrupt intent wasn’t there. Maybe Walsh exercised his discretion not to pursue criminal charges because Bush had already lost the election and was leaving office anyway. Or maybe Walsh just blew it and made a bad decision.

In the end, the only thing the Walsh example tells us is that Walsh chose not to file charges on the facts of that case. That decision tells us nothing about whether charges against Trump would be appropriate or legally sound. It certainly doesn’t amount to a precedent that needs to be distinguished.

The Comey Letter to the FBI

Dershowitz has also argued that Comey’s letter to his former colleagues at the FBI after he was fired supports Dershowitz’s arguments. In the letter Comey said, “I have long believed that a President can fire an FBI Director for any reason, or for no reason at all.” Dershowitz claims this proves Comey agrees with him that the president had the absolute right to act as he did. But trying to turn a farewell letter to colleagues into a legal analysis is a stretch. Comey obviously was not opining on the finer points of obstruction of justice law.

During his Senate testimony, when asked whether he thought President Trump had tried to obstruct the Russia investigation, Comey replied that was a matter for the Special Counsel to consider. If he agreed with Dershowitz, one might have expected Comey to reply, “No, Senator, I believe the president had the absolute right to do what he did and that it could never legally amount to obstruction of justice.”

But not even Dershowitz believes Comey’s letter is literally correct. Dershowitz has conceded that if the president took a bribe to fire Comey, that would be a crime. So he doesn’t really believe the president could fire Comey “for any reason.”

To the extent we want to consider Comey’s letter at all, it’s reasonable to conclude Comey simply meant the president can fire the FBI director for any lawful reason. It’s probably a good bet that Comey does not believe it’s OK for the president to fire the FBI director to save himself from being prosecuted.

If the President Does It, It’s Not Illegal?

Richard Nixon famously told David Frost that if the president does something, that means it’s not illegal. Dershowitz does not go that far. He agrees the president could not grant a pardon or cancel an investigation in exchange for a bribe, because that would be an independent criminal act. He also agrees a president could be charged with obstruction for committing perjury or telling others to lie. But absent some other criminal act, he argues, the president cannot be charged with obstruction.

If proof of bribery or another criminal act would justify an obstruction charge, it must be because, in Dershowitz’s view, the criminal act establishes corrupt intent. So Dershowitz is not really saying the president could never be charged with obstruction for exercising his executive authority. He’s just arguing about what constitutes adequate proof of corrupt intent. At least where the president is concerned, he apparently believes corrupt intent can only be established by an independently criminal act.

The basis for this claim is unclear. Again, otherwise lawful acts, such as shredding my files, may become criminal if carried out with the intent to obstruct justice. I know of no legal authority for the proposition that obstruction of justice requires proof the obstructive acts also violated another criminal statute. Dershowitz certainly doesn’t point to any such authority. It seems to be some special rule he has created only for the office of the presidency.

Concerns about Vagueness

Dershowitz’s real concern actually appears to be over the breadth and language of the obstruction of justice statute itself. He argues civil libertarians should be worried about prosecutors charging criminal misconduct based on potentially vague terms such as “corrupt intent.”

These are legitimate issues often raised in white collar cases. White collar law deals with broad terms like fraud and corruption that are not well defined. In particular cases there may be valid concerns about vagueness and whether a defendant was truly on notice that his conduct might be criminal.

But Dershowitz isn’t simply saying that because of the breadth of the statute and the president’s position, prosecutors should consider charges only if the evidence of corrupt intent is overwhelming. That would be a legitimate argument. Rather, Dershowitz is claiming that unless the President commits another crime as well, he could never be charged with using the power of his office to obstruct justice, even if he stood on a soapbox on 5th Avenue and confessed that was his purpose.

If Dershowitz wants to argue for reform of obstruction of justice law, that’s perfectly valid. But he shouldn’t use concerns about that law to attempt to carve out some kind of special exemption for the president. It’s not new or unique to have criminal charges hinge on the defendant’s state of mind — it happens all the time. The president is no exception.

Should Trump Be Charged With Obstruction?

I have no idea whether Trump is likely to be charged. And I’m not arguing he clearly obstructed justice. A great deal of investigation remains to be done before the experienced prosecutors in the Special Counsel’s office could make that decision. Any obstruction case would face some significant legal and evidentiary hurdles. It’s not even clear a sitting president can be indicted at all.

Even if an indictment is legally possible, the Special Counsel could exercise his discretion not to bring charges. As I’ve argued before, the appropriate remedies may be political rather than criminal.

But as long as we still believe no one is above the law, it can’t be the rule that the president, and the president alone, is free to wield his otherwise lawful powers in a corrupt way.

At bottom, that’s the argument Dershowitz is making — and that’s why he’s wrong.

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