Famed
Harvard professor and part of O.J. Simpson's Murder Trial "Dream Team"
appeared on ABC's "The View" on May 2, 2019 to promote his book, "The
Mueller Report." In an excerpt in Section D. The Report: Obstruction of
Justice Dershowitz sets out to explain the elements of a crime, where
every crime requires both an actus reus (a criminal act) and a mens rea
(an unlawful; a corrupt intent). He goes on to say that you must first
establish an illegal act. The ancient principle of nulla poena sine lege
means that no one can be punished for doing an act that is not
prohibited by law. However, an act might not be unlawful but it does not
necessarily make it lawful.
Applying
the principle of Obstruction of Justice, president Trump's firing of
FBI Director James Comey leads to the question of exercising the
authority of the Chief Executive under Article II of the Constitution.
Dershowitz doesn't believe that the motive or intent in doing so
matters; ONLY the fact that he can. President George H.W. Bush pardoned
former Defense Secretary Casper Weinburger as an example, but it doesn't
seem to apply in this particular case to me. Dershowitz contends that
Mueller misinterpreted Constitutional Law in a section entitled: Legal
Framework of Obstruction of Justice where Mueller stated that the first
element of obstruction is "an obstructive act." Perhaps Alan Dershowitz
should have familiarized himself with 18 U.S.C. § 1505, which states:
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 and proper administration of the
law under which any pending proceeding is being had before any department or agency of the United States,
or the due and proper exercise of the power of inquiry under which any
inquiry or investigation is being had by either House, or any committee
of either House or any joint committee of the Congress—
This
statute refers to the act; without consideration to intent. Continuing
further in his copied excerpt; Dershowitz says: The [Mueller] report
cites a handful of lower-court cases, all wrongly decided in my view,
for the proposition that “an improper motive can render an actor’s
conduct criminal even when the conduct would otherwise be lawful and
within the actor’s authority.” (Disclaimer: I litigated one of those
cases.) This wrongheaded conclusion contradicts hundreds of years of
precedents requiring that the act itself must be unlawful -- the concept
of actus rea discussed above -- and that an improper motive cannot
convert a lawful act into a crime.
The
Mueller Report correctly concludes that there are no Supreme Court
decisions or even Department of Justice positions that directly resolve
the issue of whether “the president’s exercises of his constitutional
authority to terminate an FBI director and to close investigations” can
constitutionally constitute an obstruction of justice. In every case
this is true and there is the standing DOJ guidelines against bringing
charges against a president while in office. However, if the president
is the "subject" of the investigation can he use the power of his office
to terminate that investigation; to infect or undermine its
legitimacy and legality? Dershowitz completely misses the point, or is
he trying misdirection or obfuscation by continually referring to the
broader issue of presidential authority to fire someone as opposed to
the narrow and specific 'act' done, not as a matter of prerogative or
discretion, but as a means to subvert a legitimate investigation into
whether president Trump violated federal law; or encouraged others to do
so, such as lying to the FBI or Congress.
Dershowitz continues in this copied excerpt: The
Mueller Report seems to agree, saying that “Congress can permissibly
criminalize certain obstructive conduct by the president, such as
suborning perjury, intimidating witnesses, or fabricating evidence. . .
.” But that is not what President Trump has been accused of by the
Mueller Report. What he is accused of -- especially in firing Comey --
is far more analogous to the pardoning decision made by President Bush.
This is also not correct because, whether Mueller mentioned it or not,
the statements by Trump himself based on the
following:
following:
President Trump had or placed 2 telephone calls to FBI Director James Comey on March 30 and April 11, where he mentioned that the Russia investigation was “a cloud that was impairing his ability as president” and that he wanted him to “lift the cloud.” On May 11, 2017 Trump, in an interview with Lester Holt of NBC News, says he had already decided to fire Comey before receiving Rosenstein's recommendation. "Regardless of the recommendation I was going to fire Comey," Trump tells NBC. Trump also says he was thinking of "this Russia thing" when he made the decision. "When I decided to just do it, I said to myself, I said 'you know, this Russia thing with Trump and Russia is a made up story, it's an excuse by the Democrats for having lost an election that they should have won'."
Dershowitz concludes by saying as
a civil libertarian who cares deeply about the fair application of the
rule of law to all, I have tried to apply neutral, nonpartisan
principles to my analysis of the legal and civil liberties issues
surrounding this investigation. I have refused to substitute partisan
wishful thinking for neutral analysis of the law and facts. I have
refused to substitute partisan wishful thinking for neutral analysis of
the law and facts. I think that Law professor and Attorney Dershowitz is
not as impartial as he claims and ignores a pattern of behavior based
on actions and statements by president Trump that meets the 'reasonableness'
threshold that supports a violation of federal law. Even the
encouragement of others to commit illegal acts, regardless of whether
they did or not, constitutes "intent." The notion that the Mueller
Report totally exonerates president Trump is nonsense. The ONLY thing
that it concludes is that Trump cannot be proven guilty of Collusion;
which is NOT a crime in the legal sense of the word. What is concerning
is that Mueller DID find over 10 instances of 'potential' Obstruction of
Justice incidents, which he left it up to Congress to decide what to
do.
Robert Randle
776 Commerce St Apt 701
Tacoma, WA 98402
May 2, 2019
