Ethical Quote Of The Month: Former Harvard Law Professor Alan Dershowitz

“If it was a polite request saying, ‘Oh, you know, he’s a good guy, Flynn, I wish you’d back off this thing,’ that’s not an obstruction of justice. If it was a command, it would raise stronger problems.”

—Retired Harvard law professor , Constitutional scholar, lawyer, liberal and CNN commentator Alan Dershowitz, trying to explain to MSNBC what “obstruction of justice” means.

I’ve never been a Dershowitz fan, but when the List of Shame is complied after the Post 2016 Election Ethics Train Wreck has finally ground to a halt, he’ll be on another list: the one containing those who maintained their integrity.

He needn’t have bothered: the news media/Democratic Party/ “resistance'” collective has already labelled James Comey’s so far only rumored “memo” recounting that the President asked the then-FBI Director, in a private meeting in February, to close the FBI investigation of Trump’s former national security adviser, Michael Flynn, proof of criminal motives and acts.

The New York Times learned of the memo from two people who claim they had read it. One of them read part of the memo to a Times journalist.  According to these unnamed sources’ description of the memo, Trump told Comey, “I hope you can let this go” in a meeting that took place the day after Flynn was forced to resign.

“I hope you can let this go” would be consistent with what Dershowitz, no Trump supporter but apparently yet to be infected with the integrity- and logic-destoying anti-Trump virus, accurately described as “not an obstruction of justice.”

The Times, however, a card-carrying member of the “overturn the election” cabal—we know this because it stated last August that defeating Trump justified tossing journalism ethics into the trash, and because since the election, its pages have from the book reviews to the op-ed pages have been filled anti-Trump propaganda—called Trump’s reported request “the clearest evidence that the president has tried to directly influence the Justice Department and FBI investigation” into links between Trump associates and Russia. This must mean that there is no evidence, at all, since saying “I hope you can let this go” is barely influence at all.

The news of the alleged memo was breathlessly hailed by the “Can we impeach him now?” fanatics, including some readers of this blog who should know better and once did, as a “bombshell.” As Alan Dershowitz dispassionately points out, and as I have in the comment threads, it’s no bombshell. This is not  remarkable observation; a New York Times contributor was even allowed to agree with Dershowitz. (The Times can’t completely commit to the lynch mob, for then its efforts to aid and abet would be less valuable. It’s quite a tightrope these people are walking….). Constitutional law prof Elizabeth Price Foley wrote,

But as distasteful as the president’s statements may be, they do not constitute an obstruction of justice. Indeed, if they did, virtually every communication between criminal defense lawyers and investigators would be a crime.

Section 1510 of Title 18 of the United States Code addresses obstruction of criminal investigations. It is a narrow statute, criminalizing only willful acts “by means of bribery” that have the effect of obstructing the communication of information about crimes to federal investigators. Even assuming Mr. Comey’s memo is accurate, there is no indication that President Trump willfully attempted to bribe the F.B.I. director. As the Supreme Court stated in United States v. Sun-Diamond Growers of California, “for bribery there must be a quid pro quo — a specific intent to give or receive something of value in exchange for an official act.”

There is no evidence of a quid pro quo. Even assuming, for the sake of argument, that Mr. Trump intended an implied offer of continued employment in exchange for Mr. Comey’s dismissal of the Flynn investigation, it would be implausible for Mr. Comey to construe it as such. Mr. Comey was aware that he was an at-will employee who could be fired by the president at any time, for any reason. Indeed, when President Obama endorsed Hillary Clinton for president in June 2016 — during the height of the F.B.I.’s investigation into Secretary Clinton’s private email server — it would have been similarly implausible for Mr. Comey to construe Mr. Obama’s pro-Clinton remarks as an implicit offer of continued employment, in exchange for dropping the Clinton investigation. Even though Mr. Comey dropped the investigation one month later, he presumably knew that although it would please both Mr. Obama and Mrs. Clinton, it would not insulate him from being fired.

But even if one adopted an unprecedentedly broad conception of bribery, Mr. Trump’s purported statement still would not violate Section 1510. The statute is designed to preserve the free flow of information, prohibiting only acts that obstruct investigators’ access to information. Bribery of a potential witness, for example, is behavior prohibited by Section 1510. But telling the F.B.I. director that someone is a “good guy” and expressing the hope that an investigation will cease does not obstruct the free flow of information.

Another, broader federal obstruction statute is Section 1505 of Title 18, but even this statute does not fit. Specifically, Section 1505 declares that anyone who “corruptly” endeavors to obstruct the proper administration of law “under which any pending proceeding is being had before any department or agency of the United States” is guilty of a felony. Even putting aside the difficulty of proving, beyond a reasonable doubt, that President Trump’s brief and generalized words evinced the necessary “corrupt” mind-set, Section 1510 applies only to a “pending proceeding.”

In the almost 120 years since Section 1505 and its predecessor have been on the books, no court appears to have ever held that an ongoing F.B.I. investigation qualifies as a “pending proceeding” within the meaning of the statute. Instead, Section 1505 applies to court or court-like proceedings to enforce federal law. In addition to prosecutions (where charges have been filed with a court), such proceedings include actions of enforcement by federal agencies such as the Internal Revenue Service, Securities and Exchange Commission or National Labor Relations Board, in which the agency has broad powers not merely to investigate statutory violations, but also to enforce them via subpoena or other administrative proceedings….Because the F.B.I. lacks enforcement power, its investigations are not a “pending proceeding,” and courts that have considered the question have so concluded. The legislative history, moreover, confirms that Congress did not intend Section 1505 to reach F.B.I. investigations. The House Judiciary Committee report declared that “attempts to obstruct a criminal investigation or inquiry before a proceeding has been initiated are not within the scope of the proscription” of Section 1505 (italics added for emphasis).

No court has interpreted Section 1505’s “pending proceeding” language to include statements such as those purportedly made by President Trump for a reason. Such generic “he’s-a-good-guy-can’t-you-drop-the-charges?” statements are routinely made to investigators and prosecutors. Defending one’s self, client or friend is a natural instinct, and beseeching leniency is not tantamount to obstruction. Holding otherwise would endorse a breathtaking expansion of obstruction, and be utterly inconsistent with First Amendment freedoms.

Hey, but why allow little matters like what the law actually says and means to interfere with fear-mongering, exaggeration, hate and hysteria in the service of an insurrection by public outcry and the triumph of the news media and Virtuous Left? The idea, it is clear, is to pile up as many non-impeachable incidents as possible, and by misrepresenting them, seek to remove a duly elected President by sheer quantity, ignorance and emotion.

Foley deals with this too:

“Principled objections to Mr. Trump’s policies and leadership style should not blind opponents to the dangers of repeated, knee-jerk calls for criminal prosecution of the president of the United States. Let the evidence unfold, and reserve serious charges if and when the evidence warrants it. Crying wolf undermines the credibility of the opposition, further divides an already deeply divided country and breeds cynicism about American institutions that is as dangerous to our republic, if not more, than outside meddling.”

Funny, all of that sounds like something I might have written, and more than once.

_______________________

Pointer: ABA Journal

81 Comments

Filed under Ethics Quotes, Ethics Train Wrecks, Government & Politics, Journalism & Media, Law & Law Enforcement, Literature, This Helps Explain Why Trump Is President, U.S. Society

81 responses to “Ethical Quote Of The Month: Former Harvard Law Professor Alan Dershowitz

  1. And yet the rabid Left doesn’t care. They are all in on this. We discussed many times the type of cold civil war our nation is going through right now… the Left is merely still fighting it as vicisouly as ever.

    Don’t they understand that when a real reason to bust Trunp rises, the very first one of them to observe it and comment on it will immediately convince most people that it really isn’t a big deal.

    That’s the ponderous level of cognitive dissonance they have built against themselves. Whatever. I’m no Trump fan, but as long as rabid social engineering collectivist want to burn themselves into obscurity by hatefully charging at every single windmill (especially the imaginary ones) I don’t mind. The Left has been a terribly corrosive element in our society and I don’t know if the exceedinglyfew ethical causes they’ve brought up over the decades are worth the destruction they’ve wrought.

    sarcasm on But keep it up guys! You make your credibility stronger by the minutes! Sarcasm off.

  2. fattymoon

    We pick and choose, pick and choose. You choose who you believe validates your view and I choose mine. (Confirmation bias?) Here’s mine.

    I’m taking a break from commenting for a bit. Still reading, still twitting Jack’s columns I agree with. (There have been many.)

    Pax,
    Fatty Moon aka Profit Fatty aka Cap’n Fatty

  3. I know, I know! You’re a psychic and knew he was going to say this so many months later. 😉

  4. Chris

    I find the New York Times article fairly persuasive. I’m sure it helps that nowhere in the article does the writer call those who disagree deranged, unhinged, stupid, fanatics, or a lynch mob; people are more likely to listen to you when they don’t feel like they’re being personally attacked.

    • People are more likely to listen to the Left if it didn’t draft articles of impeachment every time Trump bats an eye.

      • A.M. Golden

        Thank you, yes. It’s been written here many time and I agree that, if Trump supporters or even fair-minded citizens are constantly inundated with these freak-outs on a regular basis, they are not going to take the left-wing seriously when it it vital that they do.

        • Seriously though… I’m half inclined to give the whole “intelligence leak” episode a second look with some seriousness, but much less inclined to do so as long as the Left won’t even let it get out of “rumored to be so” phase (and no, Trump’s tweet isn’t an admission that serious intel was dropped that thoigh in his right to do so may not have been smart to do so).

          But, since the Left won’t even give due diligence or deliberation or research or process a chance, I’m less inclined to care.

          Especially since this is just another LOL by the “resistance” (Left-wing Outrage Lapse)…given that Obama disseminated plenty of cringe worthy Intel to other entities in the world when he probably shouldn’t have, but the very hyperventilators you see here were undoubtedly silent and supportive then. (No doubt I’ll be given a litany of reasons why Obama doing it is completely different than Truml doing it).

        • Chris

          Trump’s approval rating continues to drop; two Republicans have joined calls for a special prosecutor; one of them has said if the allegations about the Comey memo are true, that would warrant impeachment; a special prosecutor was just appointed.

          Where is the evidence that the majority of Americans aren’t taking the Left’s claims about Trump seriously?

          • And who are these Republicans?

            As a matter of law, no crime was committed. It is perfectly lawful for the President of the United States to order the FBI to shut down a criminal investigation, for FBI exercises executive authority.

            • Chris

              Wrong. Read the NYT article Jack linked to. If it could be proven that Trump intentionally tried to obstruct the FBI investigation, that would constitute obstruction of justice. But since we don’t have proof of that, and “Can you let this go?” isn’t enough to constitute that, we don’t have solid evidence of obstruction of justice at this point.

              • If it could be proven that Trump intentionally tried to obstruct the FBI investigation, that would constitute obstruction of justice.

                Of course, obstruction, by definition, excludes proper exercise of executive authority, such as the President’s plenary power to stop an investigation by his own subordinates.

                Obstruction is more akin to say, asking others to lie to federal investigators, or conceal evidence from federal investigators, ordering the FBI to withhold exculpatory evidence.

                It seems to me that you are interpreting obstruction to encompass lawful executive authority to shut down a federal investigation carried out by one’s own subordinates, even if the investigation was not required by law. How far does this principle go? Could not Comey (absent an executive order to the contrary) have shut down the investigation on his own initiative?

                what about a situation where an FBI agent decides to conduct an investigation and the investigation turns out to be misguided, including having the effect of impeding other investigators or imposing unnecessary hardships on third parties. Are you implying that the agent’s immediate supervisor- let alone the President- would be obstructing justice if he ordered the investigation shut down?

                In sum, our constitutional structure means that no person can exercise federal executive authority independent of that of the President, which implies that the President can limit the authority of his subordinates.

          • “Trump’s approval rating continues to drop”—well, of course, since the news media is proclaiming a daily earth shattering crisis over matters as ordinary as the President firing someone that he has every right to fire “for any reason or no reason,” and lowering trust and approval is the objective of such coverage. What a great plan: slant reporting to make poll numbers drop, then announce alarm that the poll numbers are dropping!

            And that is a fair description of what is going on. Are you fooled by it, or just supportive of the strategy?

            • “And that is a fair description of what is going on. Are you fooled by it, or just supportive of the strategy?”

              Chris’s has commented before:

              “Again, I don’t see evidence of this. His approval rating is falling, not rising. The protests against him are getting results. Rather than inoculating Trump against criticism, I think the early resistance has hobbled his presidency.” -Chris on 16 Feb 2017

              “Trump’s approval ratings, the resignation of Flynn, the many immediate rulings against the travel ban…none of this indicates to me that the left is shooting itself in the foot with these protests. It tells me that they’re working.” – Chris on 16 Feb 2017

              The tone of these comments would suggest that Chris approves of the strategy.

              • It’s an anti-American, undemocratic, unethical strategy that is dangerous and despicable. Glenn Reynolds wrote yesterday, “The childish response of Democrats — and ‘NeverTrump’ Republicans — to the 2016 election has done more damage to American politics and institutions than any foreign meddling could do.”

                • Chris

                  A.M. Golden’s claim was that fair-minded citizens won’t take the left seriously about Trump if we keep up what we’ve been doing; I pointed out the evidence against that theory.

                  What I’m not falling for is the idea that the firing of Comey was normal or appropriate. We are not going to agree that the coverage of this issue has been unfair or slanted against Trump, but that’s irrelevant to the argument I was making anyway.

                  • Chris, you know how many FBI Directors there have been since 1935? 7. Two were fired. One, Hoover, should have been fired every day for about 20 years. There’s no “normal.” As for “appropriate,” it is always appropriate to fire someone who deserves to be fired. You are in fantasy land.

                    • Chris

                      How many were fired while investigating members of the president’s campaign?

                      If I’m in “fantasy land,” I am joined by a majority of Americans who think the firing was inappropriate, as well as Ken White, David French, Cathy Young, and Jennifer Rubin–none of them dyed-in-the-wool liberals. This is good company to be in.

                      As I explained to tex, the theory that Trump fired Comey out of personal vengeance for his choice to continue the Russia investigation (and his refusal to back Trump’s wiretapping conspiracy theory) is the only one that accounts for every aspect of the timing and method of the firing. It is the best and most logical explanation. You can keep calling it a loony idea, but it’s now the mainstream, bipartisan, accepted position; yours is the fringe position, shared by few other than Trump’s most ardent supporters.

                    • The latter is 1) pure and biased speculation and 2) irrelevant to any issue properly under discussion. As the Asst. AG explained, there were many good reasons to fire Comey. As Comey explained, no reason at all was necessary. As I have explained, and explained, any decision can and usually does have many reasons behind it, and the presence of unethical reasons among those employed to engage in legal, reasonable, appropriate conduct doesn’t make that action wrong, unethical, inappropriate or illegal.

                      I really couldn’t care less how many critics are dead wrong about this. Take solace if you like in the facts that their dislike of Trump has addled their ability to analyze clear facts, but it really shouldn’t comfort you.

                    • Chris

                      Jack,

                      The ability to clearly analyze facts would lead one to conclude that Trump fired Comey primarily out of personal vengeance. Every available fact supports this contention, and no fact contradicts it.

                      Your bias against liberals and the media is blinding you to accepting this conclusion.

                    • With all due respect, you’re nuts. That said, vengeance is a perfectly legal and even traditional reason for a POTUS or any leader to fire anyone within his power to fire. Comey was also incompetent, and as Trump said, a showboater. Your contention that these factors were not also in play is ridiculous and willfully in defiance of known facts.

                    • Chris

                      Is Cathy Young nuts? Is Ken White nuts?

                      Whether it’s legal or traditional is irrelevant; it’s unethical.

                    • Welp what?

                      You know, one narrative from start to finish requires one to simultaneously believe Trump is an evil Machiavellian pulling multiple strings to wield some nefarious power while also a bumbling moron who probably can’t spell his own name.

                      Another narrative, from start to finish requires one to simultaneously believe Trump is very unready for the Presidential position and can’t get his mind out of “provoke” mode when communicating while otherwise desperately trying to get on his feet as the President.

                      Now, the first narrative requires holding inconsistent premises, the second doesn’t.

                      Whichever narrative you subscribe to will cloud how you read that linked article. Both narratives will derive different conclusions from the article.

                      I’ll stick with the 2nd, internally consistent narrative, you however can do as you please…but I don’t think the article says what you desperately want it to say.

                    • Chris

                      You’re really over complicating this, tex.

                      There’s no “narrative” required to accept what has been my main argument this whole time: that Trump fired Comey over the Russia investigation. All that’s required to accept this fact is what Trump has now said in his own words. Twice.

                      Are you still disputing this fact?

                      If not, what exactly are you disputing?

                    • No, it’s your interpretation of a small set of the data presented pulled out of a larger context, and it’s not even a perfect interpretation of that data if that were the ONLY data available.

                      No, as I said, everything available to us, Trump’s personality, his comments and his conduct are all known data. Your preconceived notions (that is to say, your narrative) cloud how you interpret those data.

                      I gave you two “narratives” to approach all of these Trump stories, one, which is internally inconsistent (yours) can lead one to believe erroneously that the articles you link to say what you desperately want them to say. The other narrative (an objective one that considers all the angles) does not lead one to believe the articles say what you think they do.

                      You keep pushing a two part fallacy in thought. You keep Texas Sharpshooting, and then you spin even that data…

                      Stop.

                      Your hate is embarrassing you.

                    • Chris

                      I gave you two “narratives” to approach all of these Trump stories, one, which is internally inconsistent (yours) can lead one to believe erroneously that the articles you link to say what you desperately want them to say. The other narrative (an objective one that considers all the angles) does not lead one to believe the articles say what you think they do.

                      There is a lot you are leaving up to interpretation here.

                      What exactly are you saying my “narrative” is? What do you think I think those articles say? What is the other narrative, and what makes it more objective? What angles am I neglecting?

                      As far as I can tell I’m saying exactly what I mean here, while you are the one obfuscating.

                    • No, this has been explained here and in the other post to you. We aren’t running in circle because you don’t want to face a convicting truth about your thought process.

                      I’ve explained it well enough. You’re a spinner and you have to hold inconsistent premises to reach your conclusions. Those of us remaining objective about this do not have to.

                      Carry on though.

      • Chris

        How many articles of impeachment have been drafted, tex?

        Or are you engaging in exactly the same sort of hysterical hyperbole you constantly accuse the left of?

        • You shouldn’t pretend to be facile, especially in an attempt to divert from a very valid and very accurate critique of your political camp. I know you know the difference between occasional rhetorical hyperbole and the organizational melt down of the entire Left wing since 8 November especially as it applies to overreacting and exaggerating everything it can in its hate-driven assault on Trump.

          It makes you look asinine to say things like that.

    • Yes, well, our objectives are different. She’s explaining why the hysteria is wrong. Evidence shows that most hysterics don’t care. That reaction, which is causing positive damage to the nation, as she says at the end, has to be flagged, discredited and condemned. Books that explain gravity don’t describe those who refuse to accept is ignorant fools, either. But they still need to be identified as ignorant fools, less someone assume that reasoning is involved in their pronouncements.

      • JP

        I keep waiting to see a meme that says brace yourselves everyone is becoming a law expert or something like that. Based on the NYT seems like all those critics believe they have a better understanding of the law.

  5. The New York Times learned of the memo from two people who claim they had read it. One of them read part of the memo to a Times journalist. According to these unnamed sources’ description of the memo, Trump told Comey, “I hope you can let this go” in a meeting that took place the day after Flynn was forced to resign.

    Here we go with anonymous sources again. Last time, anonymous sources claimed that President Trump shared classified information with a foreign nation.

    I wonder what credibility we should give to an anonymous source who claimed that his roommate wrote in his diary that he (the roommate) butt-fucked Barack Obama in the Oval Office.

    No court has interpreted Section 1505’s “pending proceeding” language to include statements such as those purportedly made by President Trump for a reason. Such generic “he’s-a-good-guy-can’t-you-drop-the-charges?” statements are routinely made to investigators and prosecutors. Defending one’s self, client or friend is a natural instinct, and beseeching leniency is not tantamount to obstruction. Holding otherwise would endorse a breathtaking expansion of obstruction, and be utterly inconsistent with First Amendment freedoms.

    It should be emphasized that Article II grants executive power to the President. As an executive agency, the FBI acts with the authority of the President of the United states. As criminal investigations are a discretionary duty of the FBI, it follows that the FBI has no legal duty to conduct a particular investigation, and it follows from that that the President has plenary authority to shut down a criminal investigation.

    to hold otherwise would be to give the FBI executive authority independent of that of the President of the United States, which is not allowed under our separation-of-powers doctrine.

    to be sure, it would be unlawful for the President to order the FBI to commit perjury, or defy a court order, or withhold exculpatory evidence, because the FBI and its agents are not lawfully permitted to do such things.

    But if the FBI has no legal duty to officially act in a particular context, then the President can certainly forbid the FBI to officially act in that context.

    • Chris

      Here we go with anonymous sources again. Last time, anonymous sources claimed that President Trump shared classified information with a foreign nation.

      And…they were proven right…

      Anonymous sources were also right when they reported that Trump fired Comey over the Russia investigation. His staff spent 24 hours denying this, then Trump confirmed it.

      I wonder what credibility we should give to an anonymous source who claimed that his roommate wrote in his diary that he (the roommate) butt-fucked Barack Obama in the Oval Office.

      I don’t know. Does this particular source have a history of giving newspapers accurate information that they have been able to check against other sources? That’s how the reporting in the Trump cases you mentioned worked.

      It should be emphasized that Article II grants executive power to the President. As an executive agency, the FBI acts with the authority of the President of the United states. As criminal investigations are a discretionary duty of the FBI, it follows that the FBI has no legal duty to conduct a particular investigation, and it follows from that that the President has plenary authority to shut down a criminal investigation.

      You are comically, buffonishly wrong on this. Cite a single legal authority who has argued that Trump has the right to shut down the Russia investigation. Actually, before you do that, tell me with a straight face that Trump would not have already done so if he did have that legal right.

      • Article II vests executive authority in the President of the United States. The FBI operates under Article II. The FBI has the authority to shut down the Russia investigation. It therefore follows that the President, from whom the FBI derives its authority, can do the same.

        The FBI, as an agency under Article II, can not exercise its authority independent of the President.

      • “Anonymous sources were also right when they reported that Trump fired Comey over the Russia investigation. His staff spent 24 hours denying this, then Trump confirmed it.”

        You keep repeating this, like it’s true. Hours of time have been spent demonstrating solidly how your reasoning is flawed and conclusions errant, and your pithy summary not at all reflecting on your basic assertion…

        You need to stop doing this. This is abuse of your highly tolerated position here…remember other commenters often lost commenting privileges temporarily when they’d begin to the toe the line of dishonesty when repeating debunked assertions incessantly.

        • Chris

          You keep repeating this, like it’s true. Hours of time have been spent demonstrating solidly how your reasoning is flawed and conclusions errant, and your pithy summary not at all reflecting on your basic assertion…

          Not one person has “demonstrated” that Trump did not mean he fired Comey over the Russia investigation when he said he fired Comey over the Russia investigation. You’ve merely asserted it, in direct defiance of logic and common sense.

          If I’m wrong here, link me to where you demonstrated it.

          • No, aren’t playing that middle school debate game. You took a quote of Trump, while disregarding all other quotes of Trump as essentially gibberish, then loosely connected his comments (read as spun) into something they didn’t necessarily mean and generalized that as the reason he fired Comey.

            You can go back and read. We’re not fleshing this out again.

            You’re flat out in error on this, and everyone has been exceedingly patient with you on this topic. Keep pushing it and there’s only one option: to consider you a dishonest shill blinded by pure rage. But we’ll keep tolerating it, it’s a sickness.

            • Chris

              I explained why the other parts of the Trump quote were gibbirish, tex, using logic and common sense. The other reasons Trump stated for firing Comey did not make sense given the timing and method of the firing. The only theory that fully explains every aspect of the firing is that Trump fired Comey out of personal vengeance.

              Now, you can continue to side with Trump’s most ardent supporters in refusing to believe this theory, though the only reason I can see for that is out of spite toward liberals. But the rest of the country has accepted it.

        • Chris

          More importantly, tex, do you agree with Michael that the president can order an FBI investigation to close at will? What say you, Jack?

          • He can, but he shouldn’t. Ever.

            • Chris

              Interesting. Can you cite the law on this matter? I’m honestly surprised to learn this.

              • The law? It’s not statutory, it is basic separation of powers: law enforcement is in the gray area between the judiciary and the executive, but because of the appearance of impropriety, the executive should not endeavor to co-opt policy and decision-making in that sphere, That’s why the Justice Department views itself as apolitical and independent, and why the tendency of Presidents to get around that my appointing political allies to manage it is a huge problem. The President can fire justice officials for incompetence, dishonesty, etc,, but in pure policy matters—investigations, enforcement, oversight…he should do no more than opinions and an open ear and mind. He has the power to fire, as Comey said, for any reason, but taking over the Justice policy function is unethical…legal, but unethical.

                • Chris

                  OK, I Googled around, and multiple sources have confirmed that you are right about this.

                  Michael: I am sorry. You were absolutely right that Trump has the legal authority to stop an FBI investigation.

                  But I must echo Jack and tex in their assertions that doing so would be unethical.

                    • This goes into the issue of why we allow the President such power if it could be abused to protect his political allies.

                      the answer is that the power to conduct a criminal investigation is one that is most threatening to our civil liberties. There must be safeguards. And one of these safeguards in the federal system is that a politically-accountable person (in this case, the President of the United States) has absolute control over the investigation, and unless the investigation is legally mandated under circumstances prescribed by Congress (another politically accountable body), the President has the full authority to unilaterally quash the investigation, regardless of the fairness, ethics, or wisdom of such an action.

                      Aside from the inherent executive authority arising from Article Ii to regulate and quash criminal investigations, Congress may pass statutes regulating the circumstances under which the President may investigate. And the judiciary, of course, can enjoin an investigation for statutory or even constitutional reasons.

                      these are the leashes the United States of America, through all three branches, placed on the FBI. And there is the possibility of completely legal, yet unethical abuse. As mentioned above, the President may quash an investigation to protect himself or his allies. Congress may limit the authority of the FBI to protect favored constituencies. And courts may render unethical decisions, either to quash a plainly legal investigation, ior refusing to quash an investigation that is blatantly illegal.

                      And then of course, theere are checks and balances among the three branches. The President or the members of Congress may suffer political punishment for abuse of these leashes over the FBI. The President is subject to the impeachment and removal process, and Congress’s statutes on this matter are subject to judicial review. Unethical court rulings can be appealed.

                      But the FBI, with zero political accountability on its own, is not a check on any of the three branches. We have decided that the possibility that the President, or Congress, may yank the leash the FBI for political purposes, regardless of the fairness, ethics, or wisdom o doing so, is not as bad as taking the leash off the FBI.

                  • Unethical, and just another dirty politician trick… which we we voting against

                    • Sorry, Jack, lack of caffeine…

                      I was responding to:

                      But I must echo Jack and tex in their assertions that doing so would be unethical.

                      I agree, and further comment that this is what many trump voters voted against.

                      We voted against the business as usual, the corruption, and the dirty politics the Establishment has made the norm. Trump disappoints (on SO many levels) when he used unethical, immoral but legal dirty political tricks to violate the spirit of the law and our Republic.

          • He can, but he shouldn’t. Ever.

      • Wow. And hearsay evidence is often correct, but since it is unreliable, prejudicial and its accuracy cannot be assessed, it’s banned in court. And lie detectors can be right, but often they are not, so they are not considered evidence. Rumors can be correct; that’s why the National Enquirer sometimes is correct. This is enough for you, is it?

        Journalism ethics codes say that anonymous sources should be used sparely and only when absolutely necessary…why? Because while they may be right, they often are not—like the source who claimed Rex Tillerson ordered everyone to avert their gaze, or the source who falsely claimed the Asst. AG threatened to resign. The news media’s orgy of anonymous sources is based on the resistance’s theory that if it impugn Trump, it must be reliable.

  6. valkygrrl

    “If it was a polite request saying, ‘Oh, you know, he’s a good guy, Flynn, I wish you’d back off this thing,’ that’s not an obstruction of justice. If it was a command, it would raise stronger problems.”

    When a King speaks, his every word is a command.

    • Except the President isn’t a king, and Comey was neither a subject nor a subordinate.

      • valkygrrl

        But it appears he thinks of himself as one, hence the demands for fealty.

        • Well, the Left is all about treating people according to how they self-identify, right?

          • valkygrrl

            Hi, have we met? I loathe Caitlyn Jenner and think Rachel Dolezal is a nut. I’m a left, liberal not a post-modernist.

            Knowing how someone identifies tells me something about them, I can look at polls and learn that 95% of people who self identify as x feel y about z, I can look at census data and say people who identify as x mostly live in one place and have a median income of whatever, I’ll know which of my issues to put emphasis on and where, yay data. It doesn’t mean I believe them or believe their self-assessment or that there isn’t an objective reality.

            No Trump isn’t a prince. But if he thinks of himself that way and expects others to treat him that way, I have to take that into account when judging the intent of his words, do I not?

        • You have no idea what he thinks. The only President I’m aware of who mused openly about being a king was Barack Obama.

      • But in relatively authoritarian hierarchies (which the Executive Branch is to a degree), the boss’s wishes, depending on their tone, are readily translatable into commands.

        Now, our Executive Branch is an authority driven hierarchy, but it isn’t so absolute that any particular branch is at liberty to violate it’s mandate and mission (which is Legislature driven) if the Executive so wishes it. In that sense the Executive is checked from absolute monarchy within the Executive Branch.

        But that doesn’t mean some “wishes” ought not be seen as commands.

        In this case, the maxim, though useful, is in error because the Trump’s “wish” *in this case* cannot be translated into command. On a different topic, had he said something like “I wish our FBI agents had more range time with their weapons” or “I wish our FBI agents had additional training familiarizing themselves with the cultures of the most populous immigrant groups to our nation”, then I’d say those wishes would need to be seen as commands.

        But “I wish this investigation would go away” is a much more shaky.

        • valkygrrl

          Even when the refusal is followed by a firing? He wanted personal loyalty in exchange for a fief, the FBI. he wanted the investigation ended.

          Even when during the first go of the AHCA was accompanied by demands to the freedom Caucus to do as they were told. He wanted them to do as they were told because he was the president and it was good for him, not good for them. Their jobs weren’t at risk but their principals were.

          I don’t want to go too deeply into this because I really really really would feel a lot more comfortable if I could actually read the memo but what I am comfortable saying is that with what we know of Trump the man, a “request” like that would be a command, any word to a subordinate would be a command. He’d only be able to ask if he saw the person as an equal.

        • We are in the realm of law, however. “Do this” (or else) and “Can’t you do this for me, pretty please?” are clearly distinguishable. The latter, if not ignored or dismissed out hand, is properly followed by, “Is that an order?”

  7. Sue Dunim

    There is no evidence at present that Trump has done anything illegal in office.

    He can declassify anything, give the SIOP to the Russian Ambassador or a list of all CIA informants within ISIS to the Muslim Brotherhood, all quite legally.

    As Waleed Alyi puts it;

    ” This is a country ruled by a man who doesn’t seem to grasp its most foundational civic tenets; who doesn’t understand the importance of independent law enforcement bodies, or judiciaries, or even of the need for restraints on presidential power, just as he seems not to understand the point of a free media. It’s like he doesn’t grasp the concepts of conflicts of interest, or obstructions of justice. In Trump’s hands, these are content-free abstractions: annoyances to be sidestepped rather than sacred limits to be observed, even if grudgingly.”

    I think that’s accurate. Possibly inevitable for anyone of his background.

    If it’s not actually illegal, he feels there’s no reason to hold back. And if it is illegal, but the sanctions are nugatory or nonexistent – as with the Trump University fraud, or the many suits brought against his entities for nonpayment – then also, why not? It’s just smart business practice, and many if not most of the larger corporations do similar things, if not so blatantly.

    He has encouraged the arrest of journalists for “leaking classified material”, but hasn’t arrested political opponents under the various national security acts, as he could have done quite legally. Not yet, anyway. Perhaps his advisors haven’t told him about that, or perhaps he sees no reason to, as he’s doing such a wonderful job, Best President Ever. Everyone around him agrees.

    ” But the trouble is that so much of Trump’s voting base seem not to care about these civic tenets, either. It’s true his approval rating is dire, hitting lows in the 30s and 40s. And it’s also true only around 35 per cent of Americans deem his firing of Comey to be appropriate. But this is a president who came to office with less than 50 per cent of the vote in a low-turnout election. Put simply, he won with the support of around 25 per cent of eligible voters. If 35 per cent of Americans approve of his actions, it’s entirely possible that includes just about everyone who voted for him last November.”

    If he gets removed from office, for any reason or by any method whatsoever, they’re going to be… Miffed. Vexed even.

    ” But now imagine that for a moment: a president staring down the barrel of impeachment for violating a series of fundamental principles neither he, nor his supporters, seem to believe in. What happens then to that significant chunk of the country that would feel the system has robbed them of their president for no reason they respect? ”

    It would be ugly. Not the worst though. The worst involves throwing a nuclear tantrum as a distraction. The classic move of embattled leaders is to try to have a short, victorious war. I don’t think that’s his style though.

    • This is a country ruled by a man who doesn’t seem to grasp its most foundational civic tenets; who doesn’t understand the importance of independent law enforcement bodies, or judiciaries, or even of the need for restraints on presidential power, just as he seems not to understand the point of a free media.

      EVery one of these observations could have been made, and perhaps should have been, regarding the previous President. As I documented, Obama repeatedly injected himself into private or local matters. He “punched down” against citizens and media figures, as well as Fox News. His Justice Department bugged a Fox reporter. As for limits on power, it was Obama who decided to bypass Congress by “pen and phone”, using the Executive Order power beyond its usual boundaries. Independent judiciary? Obama lobbied the Supreme Court during the pendancy of SCOTUS rulings on Obamacare. Independent law enforcement? He publically gave his views on local cases like the the Zimmerman-Martins case and Ferguson. Protocol and institutional limits? Who defid law and Congress by bombing Libya while claiming it wasn’t “an act of war”? Who bypassed the Senate by trading five terrorists for a deserter, and then having Susan Rice call him a distinguished soldier? Who sent ransom to Iran for hostages, then obfuscated about what really happened?

      And so on. The point is not to justify any of what Trump has done by “he did it too,” but to point out the astounding and self-evident double standard being applied. I agree that Trunp doesn’t understand most of the lines he may be crossing, nicking or blurring, but OBAMA DID. Which is worse: ignorant transgressions or deliberate, knowing ones? The law says the latter, always. Yet the double standard itself is a crisis, as it posits that a Presdent whom the progressive establishment—including the news media—supports is just doing the good work of the virtuous when he engages in these things, while a President whose policies are repugnant to the Left is causing a “crisis” when he behaves similarly. That creates acrisis, all right: a crisis of misinformation, public manipulation, and the undermining of legitimate elected authority. Standards that are only raised when the disfavored violate them are not standards, but ideological weapons. Every Trump dissemblance is a crisis; the New York Times pronounced Obama’s “If you like your health care plan” a mere slip of the tongue—repeated over 30 times. Every Trump blunder is diplomacy is crisis, Obama’s deadly “red line” gaffe was shrugged off comparatively. Obama droning foreign and American citizens raised dire Constitutional and due process issues—“I’m really good at killing people” (imagine if Trump had said that)—yet there were no widespread calls for impeachment. WORSE examples of Presidential over-reach were not described to te public as anything serious, or used to undermine trust in the office. ate standards being articulated, as Maxine Waters, an idiot, was so guileless as to say out loud, is that if a Republican President does the same thing a Democratic President can do with impunity, then it’s impeachable.

      That’s a crisis,, all right, and a Constitutional one: The news media, Democrats and earnest, “articulate” selective and hypocritical critics like Waleed Alyi are creating a new norm where being a Republican elected leader is illegal. And that’s totalitarian.

      • Very good point that it’s not that Trump doesn’t understand the point of a free media it’s that it doesn’t seem like the mainstream media understands the point of a free media; they certainly aren’t acting like one.

      • Thank you, Jack, for making the point I was about to in a much more articulate way.

        I will build upon one of Sue’s comments that combines with one of yours to make an additional salient point:

        “If 35 per cent of Americans approve of his actions, it’s entirely possible that includes just about everyone who voted for him last November.”

        If he gets removed from office, for any reason or by any method whatsoever, they’re going to be… Miffed. Vexed even.”

        “The news media, Democrats and earnest, “articulate” selective and hypocritical critics like Waleed Alyi are creating a new norm where being a Republican elected leader is illegal. And that’s totalitarian.”

        And those ‘deplorables’ will know they have been disenfranchised, and have been shown that their values are rejected by the Blessed Elite Establishment ™, and that they will never again be allowed into the political process based on the evidence at hand. What choice will they have at that point but to rebel?

        Trump voters are constantly being told by progressives they should kill themselves, or be killed, or be ‘woke’ (meaning they are ignorant, and need education, a clear reference in the mind of traditional Americans to the reeducation camps socialists like so much when they gain power.) Many are low information citizens, who want to be left alone to live their lives in peace, and only were aroused when their lives were increasingly being intruded upon by ever increasing taxation (including Obamacare,) by in your face social justice warriors, and twisted News Media who can no longer tell how badly they pervert the truth, even when it is obvious to the casual observer.

        A government who takes from producers in the name of ‘fairness’ and ‘social justice’ and gives to those who do not produce is anathema to this group. Unequal justice for this group is being preached from the rooftops by the unhinged radical progressives and the media (but I repeat myself) leading to rule by diktat, where the laws do not matter. Tyranny by Mob Rule has been seen before, and this group more than any other remembers the lessons of history.

        Having their franchise taken, and their goods and lives in danger of being taken WILL provoke a response. If the left wants blood, there is no better way than this path they have chosen.

        As an aside:

        If it’s not actually illegal, he feels there’s no reason to hold back. And if it is illegal, but the sanctions are nugatory or nonexistent – as with the Trump University fraud, or the many suits brought against his entities for nonpayment – then also, why not? It’s just smart business practice, and many if not most of the larger corporations do similar things, if not so blatantly.

        I believe we described this as New York values during the primaries, and were laughed at by the very Liberals who lament them today.

      • This is an example of the “Boy Who Cried Wolf”, with a prequel fable of the same boy never crying wolf.

  8. Other Bill

    Is that Alan Dershowitz or Woody Allen playing Alan Dershowitz?Or Alan Dershowitz playing Woody Allen as Zelig?

  9. Pingback: What does sedition look like? | Zoltar Speaks!

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