So Alan Dershowitz is shilling a book. The first I heard of this, it was because he said on the Sunday Morning gabfest somewhere in the ether that even if Trump pardoned someone in order to cover a murder he committed, he can't be held accountable for obstructing justice in issuing the pardon.
Because Alan Dershowitz said so in his new book.
Now, I vaguely remember the hierarchy of sources a legal argument can refer to (I've forgotten so much I used to know; it's kind of liberating), but I do remember that the apex was court cases on point with your argument from high courts (not trial courts), and the power of the authority descends from there. Somewhere at the bottom are law review articles, although everyone always points to the exception that proves the rule, a law review article which established the concept of "penumbral rights" relied on in the majority decision in Roe v. Wade. Even there, the law review article was largely dicta.
Somewhere below law review articles as legal authority are books by law professors grinding their own ax, usually for the publicity and book sales (Martha's Vineyard is expensive, even on a Harvard Law pension!). So Dershowitz's argument is slightly less authoritative than mine.
It's my blog, and my rules.
The idea that a President can use the pardon power to protect himself from criminal prosecution is a question that's never come before the Courts (anymore than the "right of privacy" asserted in Roe v. Wade had, although most agree the right is set, it's the regulation of abortion that's been argued since Planned Parenthood v. Casey). George H.W. Bush flirted with it, pardoning the Iran/Contra defendants on his way out the door. There's little doubt Poppy was covering his own ass with those pardons, effectively ending a prosecution that would look too closely at just how "out of the loop" he actually was (go ask your grandfather, ya punk! And get offa mah lawn!). There's also little doubt he wouldn't have been quite so bold had he not lost to Clinton, because the consequences might have been very serious for a sitting President to pardon people who might have implicated him in criminal activity, even though that activity was before he was President (again, ask your grandpa, I'm busy!). Actually, Dershowitz waffles on what he makes sound like a flat assertion of Presidential power:
“You cannot question a president’s motives when the president acts. If the president pardons, that’s it,” Dershowitz vehemently stated. “If a president fires, that’s it. You can’t go beyond an act and get into his motive or into his intent.”
Pressed by host Stephanopoulos if a pardon was part of “covering up a murder,” Dershowitz didn’t bend.
“It doesn’t matter,” the layer shot back. “A pardon is a pardon. The covering up of the murder may be an independent crime. The pardon can’t be the actus reus [action or conduct that is a constituent element of a crime, as opposed to the mental state of the accused] of a crime, because you have a actus reus of a crime that is a constitutionally protected act.”
He's right, the pardon cannot be made illegal; but the use of the pardon can. The pardon wouldn't be undone by a charge of obstruction; but it could lead to a criminal prosecution of the President, either while he was in office or after he left office. Would that happen as a matter of politics? Will, if it was covering up a murder, I'm certain it would. Dershowitz is making a weasel argument here. But he wants to hide that:
DERSHOWITZ: You cannot question a president’s motives when the president acts. If a president pardons, that’s it. If a president fires, that’s it. You can’t go beyond the act and get into his motive or into his intent.
That’s -- no president has ever been --
STEPHANOPOULOS: -- is pardoning someone to cover up a murder?
DERSHOWITZ: It doesn’t matter. The pardon is the pardon. The covering up of the murder may be an independent crime, the pardon cannot be the actus reus of a crime because you cannot have an actus reus of a crime that is a constitutionally protected act.
He steps on his own argument because he knows it doesn't make sense as a legal argument. He can't sustain it beyond a sentence or two. First he says "You cannot question a president's motives when the president acts," which is baloney anyway (there is a presumption of innocence, not a presumption of impossibility of culpability), then he realizes obstruction is the actus reus which does not negate the legal act of a pardon, but can create grounds for a criminal prosecution independent of the pardon. He wants to argue the pardon makes the coverup legal, but he can't do that. That's Nixon's argument, that when the President does it, it's legal. L'etat, c'est moi, in other words. The cover up is, indeed, the independent crime. Ask Nixon, who might have claimed executive privilege (Giuliani raised that issue today discussing a possible interview of Trump by Mueller) but couldn't use that to hide his conspiracy to cover up crimes committed under his authority. Dershowitz knows this, too, so he squirts squid ink and runs away. (Knowing he's stepped in it, a few minutes later Dershowitz claims investigating a president's motives is a "slippery slope" we don't want to slide down. Except, of course, President's are judged on their motives 24/7 by lawyers and voters and most of the waking world, including but not limited to political opponents and world leaders.)
But wait, there's more! Remember the book?! He started out shilling the book (but no one took him up on it):
ALAN DERSHOWITZ, LAW PROFESSOR: Yes, because there is something to worry about, obviously. In the end, if the president sits down with Mueller, he may be walking into a perjury trap. If he is unwilling to sit down, he may be subpoenaed, then probably they’ll be a year or so of litigation. But in the end, probably he’ll have to appear in front of a grand jury. His great vulnerability is a perjury trap, a perjury rap, because as I argue in my book, you need to commit a crime to be impeached.
And if he’s committed previous crimes -- there’s no evidence of that -- that won’t work. But if he commits the crime of perjury, he’s in Clinton-land. (emphasis added)
Bollocks. Art. I, Sec. 2, clause 5 of the Constitution states:
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
Section 3 of the same article, clauses 5 and 6:
6: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
7: Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
And then Article II, Sec. 4:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Now; who decides what are "high crimes and misdemeanors"? The Chief Justice may preside at the impeachment trial of the President, but the Supreme Court does not review the results of that trial. An acquittal is an acquittal, a conviction is a conviction, and the only outcome is removal from office. Any more than that is a judicial action which the Supreme Court could review. But not the impeachment: high crimes and misdemeanors are what the House says they are. Once they have said so, the matter goes to the Senate. Whether it is a crime as defined by Alan Dershowitz matters as much as how far you can spit against a hurricane.
Frankly, did Clinton commit perjury in his sworn testimony? The non-lawyers might think so, but no prosecutor was ever going to charge a witness in a civil case with perjury on those facts. Perjury is a very serious crime. That means it requires a strong showing of the elements of the crime, and as most lawyers will tell you, that's seldom worth the effort. It's kind of like a death penalty case. Far easier to prove manslaughter (negligence) than prove the elements of intent necessary to put someone to death. Even then, the crime is usually heinous, and that factor helps move the jury to find the intent it is so hard to prove. Is it perjury where a man is trying not to admit an affair with someone not his wife? It's almost too petty to call "misrepresentation." Whenever I had a deposition with testimony I was sure was false, I didn't demand a criminal action; I used it to impeach the witness and help my client's case. Perjury is, I'll grant you, a "high crime." But is what Clinton did perjury? No, I don't think that was proven.
Not that the Chief Justice gave the jury of the Senators instructions subject to review by a higher court, as a trial court would do. It wasn't a trial in any sense of the words except the loosest. It was closer to the trial in Alice in Wonderland than in reality, and it ended as it did as a foregone conclusion, not because the evidence was so weak, the prosecution so out of line with the law on fraud and lying under oath.
And Dershowitz knows that; at least, he should. Impeachment trials are not trials of law; they are political acts. Elements of crimes and dissection of legal principles have no place in impeachments. The only consideration is what the market will bear, what the voters will approve, what the next election cycle will remember. If any civil officer is ever impeached and removed from office and Alan Dershowitz thinks no crime was committed, will anyone care? Will the impeachment be reversed?
What do you think?