Revered Harvard Law professor Alan Dershowitz dismissed widespread claims that President Donald Trump obstructed the pursuit of justice in an investigation into Russian meddling in the 2016 general election. Dershowitz told CNN’s Anderson Cooper that presidents have the authority to start or stop any investigation and issue pardons.
Under the Constitution, Dershowitz said, presidents can direct a government official to terminate an investigation. He said that the “best proof” of that is that Trump could have pardoned former national security advisor Michael Flynn and the entire investigation would have been over. “Trump could have told Comey, ‘You are commanded, you are directed, to drop the prosecution against Flynn.’ The president has the right to do that,” he explained to Anderson. “Remember also what the president could’ve done. He could’ve said to Comey, ‘Stop this investigation, I am now pardoning Flynn. That’s what President Bush did.”
When Cooper raised objections, Dershowitz went on the recall the case of former Secretary of Defense Caspar Weinberger, who was pardoned by George H.W. Bush before being tried for any involvement in the Reagan-era Iran-Contra scandal.
“You cannot have obstruction of justice when the President exercises his constitutional authority to pardon, his constitutional authority to fire the director of the FBI, his constitutional authority to tell the director of the FBI who to prosecute, who not to prosecute,” Dershowitz elaborated.
“You don’t believe he was trying to influence of impede any possible or further investigation into Flynn?” Cooper asked.
“What I’m telling you is that even if he did want it to impede it, and even if he did impede it, that is his constitutional power. He has the right to say, ‘You will not investigate Flynn.'” Dershowitz pointed out that Barack Obama also issued pardons.
Sparring with Dershowitz was CNN legal analyst Jeffery Toobin, who disagreed strongly with the Harvard Law professor. He said that Watergate is proof that the president is not allowed to “obstruct justice.” Dershowitz explained that impeachment is a political process in that Congress may impeach a president for “jay-walking.” He added, that there is not judicial review during impeachment proceedings and that what Richard Nixon faced is different from being found guilty of a crime. “You can impeach him if you don’t like what he did,” he said. “But you cannot say it’s a crime. It’s simply not a crime for the president to exercise his constitutional authority to pardon or to direct the FBI.”
Toobin was once an associate counsel to Lawrence Walsh, the independent counsel who was appointed to probe the Iran-Contra Affair. According to media reports in 2013, Toobin was found to have removed large amounts of classified and grand-jury related documents while working for Walsh. He later wrote a book about his work for Walsh. Walsh objected to the publication of the book, but a court dismissed his appeal of the case. Toobin later resigned from the U.S. Attorney’s office in Brooklyn NY after three years and abandoned the practice of law. He later became a legal analyst for ABC and has provided legal analysis of many high-profile cases since then.