Alan Dershowitz, you are wrong!

Simha Nyr

https://twitter.com/SimhaNyr_quimka

Mr. Alan Dershowitz is
an American legal icon, a law professor. I, on the other hand, am an uneducated
Israeli, just a common lawyer who has never studied American law. Yet I allow
myself to dispute this Goliath with my own slingshot.

Subsequent to Mr. James
Comey’s testimony before the Senate Intelligence Committee, Dershowitz writes, using
over and over again the expression “Democratic pundit” in derogatory
connotation (Fox
News, June 8, 2017):

Comey confirms that I’m right – and all the Democratic
commentators are wrong

In
his testimony former FBI director James Comey echoed a view that I alone have
been expressing for several weeks, and that has been attacked by nearly every
Democratic pundit.

Comey
confirmed that under our Constitution, the president has the authority to
direct the FBI to stop investigating any individual. …: the president can, in
theory, decide who (sic!) to investigate, who (sic!) to stop investigating, who
(sic!) to prosecute and who (sic! Sic!!!) not to prosecute. The president is
the head of the unified executive branch of government, and the Justice
Department and the FBI work under him and he may order them to do what he
wishes.

As
a matter of law, Comey is 100 percent correct. As I have long argued, and as
Comey confirmed in his written statement, our history shows that many
presidents … have directed the Justice Department with regard to ongoing
investigations. The history is clear, the precedents are clear, the
constitutional structure is clear, and common sense is clear.

Mr. Dershowitz, let me
both agree and disagree with you, and conclude that you are absolutely wrong.

First, though Comey is
also a lawyer (22 years younger than you, and definitely much less experienced),
his testimony was sheer factual evidence, which didn’t even purport to be a
legal opinion. Moreover, when some senators tried to milk him for legal
opinion, he vehemently declined to “supply the goods”.

Second, you, a most
esteemed jurist, who became a law full-professor when Comey was but six years
old – you are a much-much higher authority than he is, so you don’t need him
for “reinforcement”. It’s pathetic. It’s childish.

Third, in this argument we
don’t need any authority, since nobody disputes that the President has the
power to stop an investigation (and even to pardon any person under
investigation), so pulling the discussion in this direction is just kicking
sand in people’s eyes.

Yet,
if a president wants to exercise his statutory powers, he should do it through
a written and signed executive order (or any such document). One may argue that
such an order can be made “orally”, but President Trump does not even
maintain that he ordered Comey, orally or otherwise, to stop the investigation
of Michael Flynn, then the national security advisor.

As
for now we know that Trump just expressed, or hinted, “hope” that
Comey would stop the investigation, but any statutory body (including the
President) has the power to do, or not to do, to order or not to order, but not
to “hope”, “wish”, “expect” etc., not even
“suggest”, because all this doings have no legal effect.

If
the President says to his subordinate “I hope you will do this and
that” – does it mean that the latter is bound to fulfil the
“hope”, or not to do so? No, he is not bound to do anything, because
he was not ordered to do any specified thing.

Now,
suppose I’m wrong, and, as his son interprets, “when my father says ‘I hope’
it’s an order” – does it mean that if the investigation is still ongoing,
it is “contrary to the President’s order”, and therefore “null
and void”?

Moreover
– if this “hoping” is actually an order – can the President
“recall” it merely by saying “I didn’t mean it”, or has he
to issue a “repealing” order? And if it’s so – can he do so just by
expressing a contradicting “hope”?

Frankly,
Mr. Dershowitz, I know not. Do you know?

I
bet you don’t, because it is a grotesque situation, not taught in any law
school.

Anyway,
you don’t have to try too hard to answer this question, because Mr. Trump will
never say “in my capacity as the head of the unified executive branch of
government, and the Justice Department and the FBI work under me, I ordered
them to do what I wish”.

He
will never do so, because his lawyers won’t let him do so. He will never do so,
because it will be an admission – legal or moral – of abuse of his executive
power. He will never do so, because all the wolves in the American forest are
just waiting for him to do so.

The
only legal answer to this legal mess is that if a president expresses a
non-binding “hope” – he does it not in his capacity as president, but
in his private capacity; if he exploits his position, or status, to move a
subordinate of his to fulfil his private “hopes” – it is nothing but “abuse
of power”, and doing so with the intention to influence an ongoing
criminal investigation is nothing but “obstruction of justice” (Cornell Law School:
“Obstruction of
justice is defined in the omnibus clause of 18 U.S.C. § 1503, which
provides that ‘whoever . . . . corruptly or by threats or force, or by any
threatening letter or communication, influences, obstructs, or impedes,
or endeavors to influence, obstruct, or impede, the due administration
of justice, shall be (guilty of an offense)’)”.

Though Trump had the
authority to order Comey to stop the investigation against Flynn (and even to
pardon Flynn), he, Trump, had a clear interest to prompt Comey to do this dirty
job.

He had such an interest because
clearing Flynn through a presidential act would not have lifted the cloud hanging
over him, while clearing Flynn by the investigating authorities would have
given him a kosher certificate that would allow him to keep his job as
national security advisor. A phony kosher certificate: If this isn’t
obstruction of justice – I don’t know what really is!

Dershowitz
continues using the word “pundit” in derogatory connotation:

Yet
virtually every Democratic pundit, in their haste to “get” President Trump, has
willfully ignored these realities. In doing so they have endangered our civil
liberties and constitutional rights.

With all due respect, I
am neither a Democrat nor a pundit, and I don’t “haste” anywhere,
but, for now, it’s Dershowitz’s haste to “vindicate” President Trump, and not
the “pundits” but only he himself “has willfully ignored”
the true realities, and “in doing so” he himself “has endangered
our civil liberties and constitutional rights”.

The issue of
“obstruction of justice” is but “pocket money” compared to
bribery (Do you wish to keep your job? Fulfill my “hope”!), or,
alternatively, extortion (If you don’t fulfill my “hope”, I’ll fire
you – as eventually Trump did).

Mr. Dershowitz, what do
you say about this idea?

Later in his article, Dershowitz
says:

These
are issues worth discussing but they have been distorted by the insistence of
Democratic pundits that Trump must have committed a crime because they disagree
with what he did politically.

Mr. Dershowitz, just
google dershowitz together with foolish, and you will find 87,000
(!) web pages containing these two words. Open them one by one …you’ll find
that everyone whose view differs from yours is “foolish”.

Following your way of
labeling one can definitely say about your opinion on Trump’s “hopes”:

These
are issues worth discussing but they have been distorted by the insistence of Mr.
Dershowitz, a legal fool, that Trump must not have committed a crime, just
because he agrees with what Trump does politically.

Mr. Dershowitz, I’m not
as learned as you are. You are a full professor, and I am but an LLB. You are a
well-famed American lawyer, I am not. I have not studied American law. I studied
only Israeli law, and some universal legal principles.

You can say I’m “foolish”,
you can name me a “pundit’ in a derogatory connotation, you can say
whatever you like – this is a free-speech country, yet, pursuant to all
universal legal principles – you are wrong, totally wrong: Assuming that all
the facts already known, and that Mr. Trump has no defense line other than what
he tweets every now and then – he did commit not only obstruction of justice, but
also bribery, or, alternatively, extortion.