Tuesday, December 05, 2017

Furthering the Confederacy

Alan Dershowitz confirms that association with Trump makes you stupid.  Follow the bouncing ball:
No. If he bribed somebody, if he told a witness to lie, if he destroyed evidence, if he committed an act not authorized by the Constitution, which constituted obstruction of justice, he could be charged with obstruction of justice. What you can’t do is take an act that’s constitutionally authorized and then psychoanalyze the president and try to figure out what his motives were.

It doesn’t matter what his motives are. Let me give you an example. President Bush, the first, pardoned Caspar Weinberger, who was as clear as could be, and the special prosecutor said that publicly, that his intention was to put an end to the investigation of Iran–Contra, which may have pointed directly to President Bush. The special prosecutor said that, but it never occurred to anybody that he had been guilty of obstruction of justice, because the means he used, a pardon, is a constitutionally authorized means.
Well, actually, because no one challenged the use of the presidential pardon, abuse of the pardon has never been defined at law.  Absence of a judicial ruling doesn't mean the act is constitutional, just that it hasn't been ruled unconstitutional.

The point I’m making is that the means are what’s important. It would be a violation of the separation of powers and the Constitution to charge a president with obstruction of justice for simply doing no more than exercising his constitutional authority regardless of what his motive is.

This pretty much turns criminal law, which depends upon establishing a mens rea (not the same thing as motive, and Dershowitz knows it) in order to establish a crime, on its head.  Mens rea is the difference between murder and manslaughter, for example.  Neither turn on motive, but both turn on intent.  Negligence (manslaughter) is not as serious a cause of behavior as pre-meditation (murder).  But you can overcome pre-meditation if you can at least clear the M'Naghten threshold, a/k/a the "insanity defense."  So mens rea is key to criminal prosecution.  But here's where Dershowitz goes from disingenuous to sloppy:

President Obama changed years and years of American policy, as he was a lame duck, by telling his ambassador to the U.N. that she had to abstain rather than veto. What if I can prove to you, and I think I can, that President Obama was not motivated by what was good for America or what was good for world peace? He was motivated by anger, frustration, and pique at Benjamin Netanyahu.

This was his attempt to get even with Netanyahu, and he was badly motivated. Let’s assume we find a memo that says that. We’re not going to go after the president for that. Politically we will. We’ll attack him, as I did, but we’re not going to go after him for a crime, for him using personal pique to hurt America. That’s political.

But what’s the underlying crime in the Obama scenario?

Well it would just by, you’d have to ... obviously, it’s not like obstruction of justice, but you could argue that, for example, if a president took a bribe from the Arabs to do that, he’d be guilty of a crime. Here, he’s doing it for crasser reasons. Taking a bribe, he’s doing it for personal gain and benefit. Even if there were a crime, nobody would ever imagine doing that. We don’t psychoanalyze the motives of presidents, or of justices, or senators
There is no crime in the Obama scenario, and Dershowitz knows it.  Apples and oranges, and he should know better.  But beyond that, it's the argument about bribery.  Bribery is a crime.  You don't need to establish that the person bribed is "doing it for personal gain and benefit."  You just need to establish they took the money under the conditions outlawed by the bribery statute.  That was precisely the problem the DOJ had in the Menendez bribery trial:  they couldn't establish any of it constituted a bribe.  Menendez got personal gain and benefit, but that alone didn't make it a bribe.  His motive in taking the money was irrelevant, as no illegal quid pro quo could be established beyond a reasonable doubt.  So if the President took a gift from the Arabs, he might merely be in violation of the Emoluments Clause, rather than the bribery statutes (the distinction would be the act, the quid pro quo for the "gift").  In either case, his motive would be irrelevant; it is the act that matters.  Dershowitz makes this point until he doesn't, depending on how it suits him.

And at no time does the President act without the possibility of oversight and review of his actions.  In Dershowitz's "Obama scenario," the President has the authority to conduct foreign policy.  If he goes too far, Congress can exert oversight authority or even pass laws (overriding any veto) to restrain the President's actions.  Similarly, Congress (through its statute making power) can authorize the DOJ to appoint special counsel to review Presidential actions like firing FBI directors.  A criminal investigation is not the same thing as a criminal trial, and still there's the underlying argument by Dershowitz that, when the President does it, it's legal.

That's a nice argument if you can get it to work.  Bob Menendez would like to have used it for forego a jury trial; but that's not the way the system works.  No one gets an unalloyed opportunity to do as they see fit in government, including the President.  Indeed, the only way to say that what the President did was not legal, is in a court of law.  But according to Dershowitz, you can't ever get there unless bribery is involved, and then only because Dershowitz thinks bribery obviates mens rea (again, Bob Menendez wishes he could have sold the court on that argument).  Dershowitz insisted to Chotiner that he is more objective than any other pundit, so he's right more often.  I don't need to defend pundits in order to point out Dershowitz may be a giant among them, but he's still an embarrassment among lawyers.  Exhibit A:

That raises the question of why did Flynn lie? I think Flynn lied because he didn’t know it wasn’t material. There’s a very interesting article … about how the Obama administration may have used the Logan Act as a way of starting these investigations. Any rational person has to know that the Logan Act is a dead letter. If in fact they used the Logan Act to get search warrants or to do anything, that’s going to have a real problem, because the Logan Act cannot be a basis for anything. It’s a dead letter. It’s as if it’s not on the books.

Meaning what?

Meaning when you have a statute that hasn’t been enforced in 215 years, there’s a concept in the law called desuetude. That wipes the statute off the books. You cannot resurrect a dead statute. [Editor’s Note: Federal courts have never declined enforcement of a law because of this concept.]
Meaning, actually, nothing at all.  This is a law journal argument, the kind practicing lawyers sneer at.  It's the product of a non-practicing lawyer reviewing the law for concepts that will win him/her tenure, and nothing more.  Courts relying on law review articles for legal decisions are as rare as hen's teeth, and lawyers who cite such articles as precedent before a trial judge need to check their malpractice insurance to be sure it's up to date.  Basically, if the courts have never enforced this concept, it's the dead letter, not the old statute.

No one can be charged with the violating the Logan Act, you’re saying?

Absolutely not. If anybody could have been charged, the primary guy to have been charged would have been Ronald Reagan. Ronald Reagan as president-elect negotiated with the Iranians to keep American hostages unfreed for weeks so that he could get the credit when he was president for their release. If there was ever a violation of the Logan Act, that was it. If there was ever another violation of the Logan Act, it’s when former President Carter advised Yasser Arafat not to accept the peace offer that Bill Clinton had made to him. If there was ever a violation of the Logan Act, Jesse Jackson would be in jail, Dennis Rodman would be in jail.

And, again, just because prosecution wasn't brought against Reagan or Carter or Jesse Jackson or Dennis Rodman, doesn't mean it can't be brought now.  I'm not even sure a court would allow that complaint as a defense against a Logan Act prosecution.  There is the recognized doctrine of prosecutorial discretion, after all.

One other thing:  Dershowitz makes much of the distinction between impeachment and prosecution under criminal law.  It's a worthy distinction, but probably a misleading one.  There is no judicial review of impeachment.  The Supreme Court can't overturn the verdict of the Senate when a Federal judge is impeached and removed from office (which has happened), nor when the President is removed from office (which hasn't happened).  This is a crucial difference, because the standard for impeachment is whatever the Congress decides it is.  "High crimes and misdemeanors" is a very loose phrase, and short of the Congress normalizing impeachment and running through several Presidents in sequence, I don't foresee the Supreme Court stepping in to enforce that Constitutional phrase in a way that pleases the Court but not the Congress.

Separation of powers, donchaknow?

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