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applegrove

(118,807 posts)
Sat Jun 10, 2017, 07:58 PM Jun 2017

In the View of the Supreme Court, Alan Dershowitz Is Wrong About the Powers of the President

https://lawfareblog.com/view-supreme-court-alan-dershowitz-wrong-about-powers-president

By Rick Pildes at Lawfare

SNIP...............

Alan Dershowitz, in a series of recent op-eds, has taken to arguing in his characteristic take-no-prisoners style that the whole issue of whether President Trump might have obstructed justice is a red herring. Even if the President ordered James Comey to shut down the Flynn investigation and had a corrupt intent for doing so, this would still not amount to the crime of obstruction of justice. The reason, according to Dershowitz, is that the Constitution gives the exclusive power to the President to control all federal law-enforcement investigations—and thus to shut any of them down for any reason the President sees fit. In other words, the President can never commit obstruction of justice by shutting down a criminal investigation or prosecution.

But Dershowitz fails to take into account that the Supreme Court has decisively rejected this view. In Morrison v. Olson (1988), a 7-1 Supreme Court turned back constitutional challenges to Congress’ creation of the Act that gave us the office of the Independent Counsel—and in doing so, dismissed exactly the argument that Dershowitz now seeks to invoke.

......

The Ethics in Government Act was created out of the recognition that the President should be taken out of the process of controlling investigations and prosecutions that involved potential crimes by himself or high-ranking government officials—i.e., close aides of the President. As the Supreme Court thought was obvious, “Congress, of course, was concerned when it created the office of independent counsel with the conflicts of interest that could arise in situations when the Executive Branch is called upon to investigate its own high-ranking officers.”

The Act created a process that could lead to the appointment of an Independent Counsel for this role, and the entire point of the Act was to insulate the Independent Counsel—and hence the investigation and prosecution of crimes involving the President and his or her top aides—from the President’s complete control. The Act essentially put the powers of the Department of Justice in the hands of the Independent Counsel: it vested him or her with the "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice [and] the Attorney General."


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In the View of the Supreme Court, Alan Dershowitz Is Wrong About the Powers of the President (Original Post) applegrove Jun 2017 OP
Alan Dershowitz is a Kushner-crony. pnwmom Jun 2017 #1
That explains much. Thanks for pointing that out. benfranklin1776 Jun 2017 #4
I suspect that has something to do pnwmom Jun 2017 #10
+1 dalton99a Jun 2017 #9
If he's such a great lawyer, why doesn't he know about this? BigmanPigman Jun 2017 #2
Because the OP has nothing to do with what Dershowitz says. former9thward Jun 2017 #7
Why would he waste his credibility on these assholes? kentuck Jun 2017 #3
I'm not convinced the Morrison case TomSlick Jun 2017 #5
My husband and I blurted out the same thing about Dershowitz the other day. calimary Jun 2017 #6
Dershowitz needs attention. vanlassie Jun 2017 #8
If Dershoitwit was correct that would be WAY too much power for a president to have Quixote1818 Jun 2017 #11

pnwmom

(108,995 posts)
1. Alan Dershowitz is a Kushner-crony.
Sat Jun 10, 2017, 08:24 PM
Jun 2017

Their friendship dates back to Kushner's freshman year at Harvard, when Kushner was a student leading a small Jewish sect, and Dershowitz was the faculty adviser.

They both also have links to the pro-Putin Chief Rabbi of Russia, Berel Lazar.

So nothing Dershowitz says about DT or Russia or Putin can be trusted.

https://www.democraticunderground.com/10029183235

benfranklin1776

(6,449 posts)
4. That explains much. Thanks for pointing that out.
Sat Jun 10, 2017, 10:32 PM
Jun 2017

In my view he hasn't had credibility on constitutional matters since he tried to give Junior Bush cover for the torture Cheney ordered and Junior acquiesced in by suggesting "torture warrants", even though the constitution forbids cruel and unusual punishment and the fourth amendment protects against unreasonable searches and seizures and there is a consensus among civilized nations that it is so barbaric it is illegal under international law by agreed upon treaties signed by those nations. A situational constitutionalist and amoral servant of power he has shown himself to be.

pnwmom

(108,995 posts)
10. I suspect that has something to do
Sun Jun 11, 2017, 01:23 AM
Jun 2017

with Dershowitz's support of Israel, and Israel's use of the same kinds of torture Cheney wanted allowed here.

former9thward

(32,082 posts)
7. Because the OP has nothing to do with what Dershowitz says.
Sat Jun 10, 2017, 11:58 PM
Jun 2017

Morrison v. Olson (1988) is a case about the constitutionality of the Independent Counsel office. That office no longer exists so the court ruling is about something that no longer exists.

TomSlick

(11,110 posts)
5. I'm not convinced the Morrison case
Sat Jun 10, 2017, 10:37 PM
Jun 2017

can be read as broadly as Professor Pildes suggests. The holding in Morrison is limited to the independent counsel provisions of the Ethics in Government Act of 1978. There is language in Morrison to support Professor Pildes's argument but it is outside the holding.

It seems to me that Professor Dershowitz is simply making too strong a case for executive authority. If the President abuses his position to corruptly stop a criminal prosecution to protect himself or family or associates that would be an obstruction of justice.

More to the point, however, given that a criminal prosecution of a President is unlikely, whether or not the President's apparent actions meet the definition of the obstruction of justice under the criminal code is really a red-herring. The real question is whether the Congress thinks it is political obstruction of justice or abuse of power for purposes of an impeachment.

calimary

(81,507 posts)
6. My husband and I blurted out the same thing about Dershowitz the other day.
Sat Jun 10, 2017, 11:02 PM
Jun 2017

We saw him interviewed, pushing the "this can't possibly be obstruction of justice" meme, and we both said to each other simultaneously "he's working for trump now?" Can't help wondering if he's being paid now? He sure hires on with some interesting defense teams, I must say.

Quixote1818

(28,979 posts)
11. If Dershoitwit was correct that would be WAY too much power for a president to have
Sun Jun 11, 2017, 02:05 AM
Jun 2017

That doesn't sound at all like what the Founders had in mind to keep power in check. An extremely dangerous interpretation.
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