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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsIn 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-presidentBy 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 investigationsand 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 Counseland in doing so, dismissed exactly the argument that Dershowitz now seeks to invoke.
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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 officialsi.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 Counseland hence the investigation and prosecution of crimes involving the President and his or her top aidesfrom the Presidents 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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pnwmom
(108,995 posts)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)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)with Dershowitz's support of Israel, and Israel's use of the same kinds of torture Cheney wanted allowed here.
BigmanPigman
(51,632 posts)former9thward
(32,082 posts)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.
kentuck
(111,110 posts)What little he has left?
TomSlick
(11,110 posts)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)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.
vanlassie
(5,690 posts)Quixote1818
(28,979 posts)That doesn't sound at all like what the Founders had in mind to keep power in check. An extremely dangerous interpretation.