The Mueller Investigation

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Post by aliantha »

Cail nihilo wrote:Not in full agreement with Dershowitz here, but I think he disposes of most of your concerns: https://youtu.be/6XmmZjFCo4k
Ah! I begin to see the problem here. Unlike Trump, and presumably you, I would never dream of getting my news from "Fox and Friends."
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Post by Obi-Wan Nihilo »

I could get my arguments from my father the criminal appellate lawyer if I hadn't already exhaustively relied on my own ability to construe things logically from the premise of the Constitution (one of our fundamental duties as citizens, some would argue) in this thread, but I think per your request that Alan Dershowitz, a widely known and acknowledged Constitutional scholar -- even when appearing on Fox news -- will do as an authority.

Caveat emptor and all that.
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Post by Zarathustra »

aliantha wrote:
I would like to know where you guys got the idea that the president cannot be charged for any crime he commits while doing his presidential duties. Be specific. Show your work. And no BS YouTube videos from dodgy sources, either -- I would like to see a reasoned, articulate article from someone versed in Constitutional law.

Without that, I'll be forced to conclude that y'all are just blowing smoke out your asses.
Dershowitz is not only a renown Constitutional scholar, but also a Democrat who endorsed both Hillary and Obama.
ALAN DERSHOWITZ wrote: :. . . I think if Congress ever were to charge him with obstruction of justice for exercising his constitutional authority under Article II, we'd have a constitutional crisis. You cannot charge a president with obstruction of justice for exercising his constitutional power to fire [former FBI Director] James Comey and his Constitutional authority to tell the Justice Department who to investigate, who not to investigate. That's what Thomas Jefferson did, that's what Lincoln did, that's what Roosevelt did.
link
Josh Blackman, Associate Professor at the South Texas College of Law Houston, wrote:Congress cannot, by statute, take away a power that the Constitution vests in the president. Myers v. United States held that Congress cannot strip the president's absolute authority to fire officers who are subject to his control. Morrison v. Olson upheld the independent counsel statute precisely because it did not "impermissibly interfere with the President's authority under Article II." In contrast, Zivotofsky v. Kerry did impermissibly interfere with the president's authority because Congress required the president to recognize foreign nations. In Myers and Zivotofsky, statutes that deprived the president of his constitutional authority were invalidated.

A prosecution brought under the federal obstruction of justice statute that impermissibly interfered with the president's constitutional authority would be, as applied to such a case, unconstitutional. (I offered a similar analysis concerning regulations that purport to limit the president's power to remove the special counsel.) The difficult question, though, is on which side of the Morrison v. Olson line such a prosecution would fall. Chief Justice William Rehnquist's majority opinion affirmed the Ethics in Government Act because it gave "the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties." This line-which may or may not be supported by five justices on the current Court-is the clearest line we have. If such a criminal prosecution disabled the president from "perform[ing] his constitutionally assigned duties," the obstruction statute, as applied, would be unconstitutional.

A different analysis would pertain if the Senate, sitting as a court, alleged that the president's interference with an investigation amounted to a "high Crime[] and Misdemeanor[]." This charge would not present the problem of a statute conflicting with the Constitution; in every such case, the Constitution prevails. Rather, it would present a clash within Article II, between the president's assertion of authority under Sections 1 through 3, and the impeachment clause in Section 4. What happens when one provision of the Constitution conflicts with another? Specific grants of powers must prevail over less specific restrictions on power. That is, the president's enumerated authority to take care that laws are faithfully executed-which embraces the unenumerated removal power-takes precedence over the undefined genre of "high Crimes and Misdemeanors." I tender this rule with some trepidation because, admittedly, there is scant guidance to be had. My guiding principle is Hamilton's warning in Federalist 65 about the potential political abuses that are inherent in the impeachment process. The Framers, cognizant of this risk, deliberately imposed a super-duper two-thirds majority for removal (the same standard to propose amendments to the Constitution itself) and required the chief justice to preside. The presumption should support leaving the president in office if there are any constitutional doubts, and not removing him.

Either as a matter of statutory or constitutional law, the president cannot obstruct justice when he exercises his lawful authority that is vested by Article II of the Constitution.

. . .
link

Congress can remove the President if they think he is abusing his power. That's their power. But in order to say that he has committed a CRIME, you have to point to a specific law or statute which he has broken. But no statute can make the exercise of a Constitutional power by the executive branch a crime, i.e. breaking a law. If their laws infringe upon the power vested in the Executive Branch (i.e. the President), then this law is unconstitutional. But sure, they could still remove him. Good luck with that. Extraordinary leeway would have to be given to the specific power of the President enumerated in the Constitution itself, and not the vague "high crimes and misdemeanors."

Now, this doesn't mean that he can't abuse his lawful power. But firing Comey--on the recommendation of his Attorney General and Deputy Attorney General (who was overseeing the Mueller investigation)--do not constitute abuses of power. Pelosi and Schumer are both on record saying the Comey should have been fired, too.
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Post by TheFallen »

TheFallen wrote:
Zarathustra wrote:
Vraith wrote:
I hope y'all live long enough to suffer from the shit you're willing to countenance while pretending you really care about people/the country/the truth.
That's a fucked up thing to say.
I'd never want anyone here to suffer, no matter how much I disagree with them.
Interesting... especially in the light of this.
Vraith wrote:You really think... that it's the LEFT that's getting more and more extreme and such???
Well Vraith, if your visiting such a malevolent curse upon the houses of those that hold differing opinions to your own is anything to go by, then yep the Left doesn't come across as even the teensiest bit extreme or ideologically fanatical. Nope, not swivel-eyed, frothing at the mouth, raging, polarised and antagonistic zealots at all. Not in the slightest. Not one bit.

:roll:
Skyweir wrote:Oh puhhhllleeeaaase ... youve completely misconstrued his meaning.

If these are your beliefs and you believe that the POTUS is above the law, as is being proffered .. and thats a future you are content with ... enjoy the consequences and the natural fallout for such a belief.
First off, from what I know of Vraith, he's more than capable of speaking for himself and clarifying his own meaning and intent. It's vanishingly unlikely in my view that he needs a self-appointed wannabe PR person coming galloping over the hill to his fallaciously assumed need for rescue.

Secondly and on a wider issue, whether Vrath's statement has been miscontrued or not, the point surely is that it's easily misconstruable. And how come? Because tonally, it's absolutely typical of the divisive, aggressive and hyperbolic narrative so prevalently in play in US politics.

It's uber-emotive and polarising - he could just have easily have said "I hope y'all don't live long enough to etc etc..." and conveyed the exact same thrust of his argument, while at least partly removing vituperative confrontationalism.

But he chose not to. And the current public political narrative is tonally speaking just the same... it's pantomime.

As for the Mueller investigation, I'm reading this thread with interest. The constitutional interpretation is fascinating - though being a non-American, there's literally nothing of value or insight I can add to that particular aspect of this discussion. I don't have the in-depth knowledge required.

However, with my view from the bleachers, I do think that some on here are wrongly conflating two separate arguments - one actual and one presumed.

The core one is... under current constitutional law, what is the sitting president actually allowed to do or not? That's obviously under fierce, valid (and to me, very interesting) discussion.

The second one is... is whatever the remit/leeway/authority is that's actually bestowed under current constitutional law upon a sitting POTUS a good thing? I don't think anyone has actually argued that it is - but some are automatically presuming that others are adopting that position and are getting seriously aerated as a result.

There's a world of difference in between defining what situation actually currently exists one hand and discussing the merits (or not) of said extant situation on the other. Surely best to establish a definitive answer - or at least a consensus - on the former before going on to debate the latter?

Back to the sidelines for me on this one.
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Post by Obi-Wan Nihilo »

TheFallen wrote:First off, from what I know of Vraith, he's more than capable of speaking for himself and clarifying his own meaning and intent. It's vanishingly unlikely in my view that he needs a self-appointed wannabe PR person coming galloping over the hill to his fallaciously assumed need for rescue.
This seems to be the tactic of late. When a position is proven to be untenable, the usual suspects ride in to attack the person who's pointed out the hole in the position. One wonders who the next victim will be.
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Post by Vraith »

TheFallen wrote: Vraith, he's more than capable of speaking for himself

the point surely is that it's easily misconstruable. And how come? Because tonally, it's absolutely typical of the divisive, aggressive and hyperbolic narrative so prevalently in play in US politics.
On the first...of course I can. But who doesn't appreciate allies/backup?

On the second: EVERYTHING is misconstruable. [[and I don't see what was so bad about it, straight-out at face value, not even considering any reason/point for doing it that way---WHY is it fucked up to say I hope you have to live with the consequences, ESPECIALLY when one's actions are forcing OTHER people to live with them??]]
I gave up caring about misconstruation a long time ago, except when it's TOO far out or ruins an otherwise decent discussion.
If one is careful, then things will get misconstrued ON PURPOSE.
And that's pretty fucked up.

On the issue of the power---many among the scholarly lean one way, many the other, and fairly significant crowd say technically using a power to commit a crime is still a crime, BUT the act of prosecuting it would cause too much trouble in the system.

But...no country/group/organization/system can be fair or just or equal IF a power is used for criminal/illegal purposes {{OR if using it is magically transforms any crime into nonexistence}}

And, slightly different phrasing, doubt it will make any difference:

If one has a power, and USES that power to commit a crime, THEN one has not executed a power AT ALL, one has ONLY committed the crime.
The criminal intention/usage/purpose transforms the power into nonexistence, by necessity.
Because the power is not simply a power in isolation. It is a power that SERVES. It serves the Constitution and the Law in their entirety. It has a function, a purpose. NONE of that...no service, function, purpose...includes crimes. The structure it is created BY and FROM is meant to prevent the criminal, the arbitrary, ESPECIALLY by those given power/roles/functions.
It is clear practically everywhere---there are a nearly unlimited number of powers/action/rights that alter depending on use. In fact, whether it IS a right/power or not is nearly always defined by what it is being used for.

Simplest: I have the right to use my hands for almost anything I can think of---but I can't strangle anyone. Because that's not exercising my hand-rights, it's murder.
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Post by Ur Dead »

Vraith wrote: Simplest: I have the right to use my hands for almost anything I can think of---but I can't strangle anyone. Because that's not exercising my hand-rights, it's murder.[/color]
That isn't power.. that's personal morality. A choice by whom influenced your life. If you didn't have it then you could have been somebody who thinks
strangling people would give you power. Good for you to make the choice
you have. Many think in the same manner. While others think in terms of
gaining power thru dominance. Those latter people I don't approve of.

On a lighter note I wish I would travel to Mytle Beach during spring break
wear those shorts the older fellow wear.. The one that are pull up over their midsection , wear some sunglass and take in the sights. But for some reason
I don't have the power to motivate my "Get up and go". Maybe it just
got up and went.
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Post by Hashi Lebwohl »

Vraith wrote:
If one has a power, and USES that power to commit a crime, THEN one has not executed a power AT ALL, one has ONLY committed the crime.
Actually, that person will have done both--exercised a power *and* committed a crime.

This is all moot, in any event, because to date no one has accused Trump of committing any crime.
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Post by Zarathustra »

Vraith wrote:
-WHY is it fucked up to say I hope you have to live with the consequences, ESPECIALLY when one's actions are forcing OTHER people to live with them??
we have not taken any actions, aside from posting our opinions on a message board. There is a huge difference between disagreeing with someone and hoping they suffer for being wrong. You are not misconstrued. Your meaning is loud and clear. You even doubled down on it.

Now, as for the rest, a crime is a violation of a law. Laws are written by Congress. Congress is not allowed to write laws which violate the Constitution. That is why we have a Supreme Court. The Constitutionality of a law is of a higher order issue than the violation of that law. So when a law makes the exercise of a constitutional power of another branch of government illegal, then the Constitutionality of that law is a greater concern than the violation of that law.

Not only did the President have the power to fire Comey, but he also has the power to do what others are alleging he did by fiing comey, namely, stopping the investigation into Flynn.

However, the investigation was not stopped, so this is not the reason for firing him. No justice was obstructed, even if it were possible.

Note that I am NOT saying it is impossible for the president to obstruct justice, it is just impossible for him to do so in exercising his constitutional powers to determine what justice is. That's what it means to execute the laws. And that is why the president is also giving the power to pardon criminals, a point which I have made it least 3 times and you w
refuse to acknowledge. Why would the president be given the power to make these crimes go away, if the framers of the Constitution were concerned about him obstructing justice in the exercise of his powers? That power is explicitly designed to let him decide which criminals can escape punishment. If he has the power to do that, of course he has powers to stop an investigation. Doing so is a bureaucratic move, not a criminal one. The president is the executive branch incarnate.

To say that firing his FBI director is a crime, would be like saying Congress can write a law that is illegal. No, an individual congressman can do an action which violates a law, but in performing their constitutional duties, namely, writing laws, they cannot be charged for a crime, even if those laws are unconstitutional. Actions performed via constitutional powers of the branches of government are not illegal, they can only be unconstitutional. For instance a congressman can not be arrested for writing a law that is deemed unconstitutional, no matter how heinous you think that law is (e.g. writing a law that allows doctors to kill babies up to a minute before they are born).

The president has the power to do things that if you or I did them they would be crimes, such as dropping bombs on people. Stopping criminal investigations is another one of those powers
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Post by Skyweir »

Its not about the act of firing anyone .. it is about the reason he fired Comey.

Its the REASON that is the issue .. the why.
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Post by TheFallen »

Y'know what? It's quite educational sitting on the sidelines as I am in this discussion. Doing so seems to bring a relatively illuminating perspective along with it,

Let me caveat all the folowing by pointing out the undeniable fact that I know less than diddly about US Constitutional Law. There. Nevertheless...

Vraith, here's why I think you've got things ass about face. You seem to me to be starting with a conclusion and then building an argument back from that point.

You seem to be saying:-

"Trump is point blank not allowed under the existing laws and constitution of the USA to do some of the things he's done or is doing.

Ergo, he's committing crimes.

Ergo, anyone who says he isn't is clearly in favour of Trump committing crimes.

Ergo, anyone who says he isn't is thus supporting that Trump, the despot in the White House, should be able to do whatever he likes.

Ergo, y'all are vile human beings and y'all can go screw yourselves. I hope y'all die a horrible death."


(Yes, I've somewhat exaggerated that, but hopefully you'll take the point).

EXCEPT... it's actually your starting conclusion that has not at all been established as being the case. Surely the core point currently under debate isn't actually centred on Trump in the least? Isn't it instead actually - at this stage at least - still a conceptual question? About what the Constitution (which I believe has a greater superiority to more general legislation) allows a sitting POTUS - ANY SITTING POTUS - to do?

As Zee said:-
Zarathustra wrote:The president has the power to do things that if you or I did them they would be crimes, such as dropping bombs on people. Stopping criminal investigations is another one of those powers.
If the above statement is correct - and again bearing in mind that I know next to nothing on this subject, but that cited Dershowitz stuff seems to pretty categorically say that it is - then surely the existing sitting POTUS (or indeed any other once sat POTUS) cannot be accused of illegally abusing his power, no?

And again if the above statement is correct, surely your argument is with the Constitution itself for permitting what you see as such an overreach?

I've not seen anyone here so far exactly arguing in favour of what the Constitution currently seems to allow a POTUS. Instead, the people you're taking a swing at are solely presenting a case as to what the Constitution actually allows (as currently interpreted... presumably by SCOTUS).

Surely that is the central and absolutely key startpoint? And on that basis, aren't you therefore kinda chasing the wrong rabbit? This Constitutional question is actually a far more general and thus not a specifically Trump-based or party political issue?

But as I started... Hell, what do I know?
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Post by Skyweir »

https://www.motherjones.com/politics/20 ... -election/

I found this interesting.. perhaps seeing the situation from a different perspective might be useful .. re Trump and some of the pieces of the alleged puzzle.
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Post by Ur Dead »

Skyweir wrote:Its not about the act of firing anyone .. it is about the reason he fired Comey.

Its the REASON that is the issue .. the why.
again this article

https://www.newsweek.com/can-president- ... mey-594716


Comey was toast before the 2016 elections, By his actions of reopening
Hillary's investigation. At that time the Democrats were screaming for Obama to fire Comey. How dare he reopen the investigation one month before the
elections. He was trying to influence the elections.
That is why Congress today really don't make an issue why,when or where Trump fired Comey. The only thing trump is guilty of in this case is
stealing hillary's thunder. Or more , taking the thunder and making it his own.
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Post by Zarathustra »

TheFallen wrote: If the above statement is correct - and again bearing in mind that I know next to nothing on this subject, but that cited Dershowitz stuff seems to pretty categorically say that it is - then surely the existing sitting POTUS (or indeed any other once sat POTUS) cannot be accused of illegally abusing his power, no?
This isn't exactly right. The President can be accused of abusing his LAWFUL power, but such an abuse can't be a crime (i.e. a violation of some law Congress wrote). Congress doesn't need a crime to remove him from office. Impeachment isn't a legal procedure in a court of law. They could simply think that Trump is unfit for office due to his Tweets, and vote to impeach him. And then the Senate could remove him. They have the power to do that.

However, like the President, just because they have the power doesn't mean that this power can't be abused. That's why it takes a super majority (2/3) to do it--the same amount to override a Presidential veto. if they choose to remove him for something that he has the Constitutional authority to do (rather than, say, breaking into the Democrat headquarters and then destroying incriminating evidence, as Nixon did), then they better make damn sure that they have the public on their side, because there will be hell to pay in the next election if they overturn a Presidential election based on something that isn't an abuse of power. And it might just set up a Constitutional crisis where the SCOTUS would have to intervene. I'm not sure. It would be very hard to do with the Reps controlling the Senate.

Let's go back to this:
Vraith wrote:But...no country/group/organization/system can be fair or just or equal IF a power is used for criminal/illegal purposes {{OR if using it is magically transforms any crime into nonexistence}}

And, slightly different phrasing, doubt it will make any difference:

If one has a power, and USES that power to commit a crime, THEN one has not executed a power AT ALL, one has ONLY committed the crime.
Think about what you're saying here. The only reason using an Executive Branch power would be a "crime" is because Legislative Branch passed some law. So prior to that law, the action taken via that Presidential power would NOT have been a crime. That means with the passing of a law, Congress has made a specific execution of a Presidential power a crime--and by your logic--has removed that power from the President. You said it yourself. Using that power in a way that violates a specific law means that he has not executed a power AT ALL. So Congress took away a power he once had (given by the Constitution) by writing a law.

That's precisely why it's unconstitutional. Congress can't write laws that override the Constitution. Therefore, they can't write laws that take away Presidential powers outlined in the Constitution.
Skyweir wrote:Its not about the act of firing anyone .. it is about the reason he fired Comey.

Its the REASON that is the issue .. the why.
How can that possibly make sense? The Constitution gives the President a power. It doesn't say that he has to have good reasons to exercise that power.

As I've said before, the President has the power to stop any investigation. Everybody under the President--from the DOJ to the FBI--all get their power from the President. The only reason an investigation is lawful in the first place is because it is part of the Executive Branch. All of its authority is vested--personally--in the President himself. It is literally impossible for him to obstruct justice by exercising his Presidential powers to command/order/decide his Executive Branch, including which things they will investigate. That would be like saying that he has obstructed himself. It's a contradiction. He *is* the Executive Branch. None of his subordinates have power over him. They all get their power from him. None of them can decide to investigate something that he doesn't approve.

Now, the President CAN commit crimes. If he murders someone, lock him up. He's not above the law. But Congress can't--via statute--tell him which actions he can or can't take in his job. Nothing that he does in his job is obstruction of justice. His reasons don't matter. The Constitution doesn't mention reasons.
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Post by Fist and Faith »

I don't know, Z. The POTUS is the Commander-in-chief of the armed forces. What if he takes a squad to someone's house, and, without a search warrant, orders them to search the house for something. Did he not use his Executive Branch power to commit a crime?
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Post by Vraith »

Zarathustra wrote:Think about what you're saying here.
I know what I'm saying there, and some of your following comments make a certain amount of sense.

But we do it all the time.
We kinda have to.

Owning slaves used to be just fine...
And it used to be ---and exactly the same kind of thought structure made it so---that raping your spouse wasn't just allowed, the whole phrase didn't make sense, such an act literally couldn't exist.
The first was stopped by war and constitutional amendment.
The second by laws
And BOTH by recognizing that the reasoning was ridiculous--people of African descent, and spouses, were STILL PEOPLE. Slavery was a violation. The act was not only possible and fairly common, it was evil as all fuck.
[[some folk still think it's only "illegal," but not really a "crime" ---there are elected officials [or were last time I checked, some might be gone now] that think that...]]

It's not unconstitutional, as long as the law is constitutional. And the purpose of the law is not to remove a power...that would obviously be unconstitutional.

A law might limit a particular usage of the power...but the power is ALREADY constrained by the obligations---constitutional obligations---of the office. And once the law is passed, if it is constitutional, it becomes a PART OF the Presidents obligations/duties.
BEFORE he takes office/gains the powers, IN ORDER to do so, he has an oath/obligation. And it is to the Constitution.
In what way is it possible to defend/support the Constitution by breaking a law---and USING a power to DO it---and thereby violating the source of the power, and its explicit purpose?

I know that what I say can lead to some possibly paradoxical situations...procedures exist to manage them.

But the alternative is immeasurably dangerous...I think all y'all on that side are bigly, tremendously ignoring/underestimating that inherent danger...
[[and flipping the hierarchy on its head, anyway]].
and the only possible [from that position] procedure is, in practice, nearly impossible.
AND suffers from at least one identical problem that the power-argument does.

And, as I said before, kills off any real justice, equality, rule of law.
The U.S. is just tyranny by another myth.
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Post by Zarathustra »

V, which law did Trump break? How did he break it? I assume you mean obstruction of Justice by trying to impede the investigation into Flynn by firing Comey.

If you think the alleged illegality of that is constitutional in a general sense, then let us get specific. Can Congress write a law that says the president may not stop an investigation if that investigation involves one of his associates? [ note: he would retain the power to stop investigations if they did not involve associates.] If they can do this, then they should be able to write a law that forbids him to pardon any of his associates, correct? You keep avoiding the pardon issue, but this brings everything else into focus. Obviously, Congress cannot put limits on the president's power to issue pardons merely because they do not like whom he pardons. So why should they be able to put limits on any of his other powers merely due to whom it concerns?

If they were able to do this, how would that be different from saying that a special counsel cannot investigate someone they are ideologically opposed? If the purpose of these laws are to prevent people from using their power to protect their friends, how is that different from people in power using their power to harm their enemies? Trump stopping an investigation into Flynn should be just as bad as Obama starting an investigation into Trump. But only one seems to concern your side ( even though the investigation into Trump is more clearly and directly connected to Russian involvement via the dossier then any connection to Russia with Trump).
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Post by aliantha »

Is Dershowitz a Democrat, really? I wouldn't be so sure. The author of this Politico article says Dershowitz has always been a civil libertarian -- which, in this case, means he's opposing the appointment of the special counsel moreso than supporting Trump. The article is worth reading in full, but here's a section that's pertinent to what we're talking about (emphasis mine):
The second pillar of Dershowitz's argument is more technical, and more controversial: A president cannot be found guilty for exercising his constitutional authority, he argues, and his constitutional authority includes the right to fire anyone in the executive branch, even if that person is investigating him. In his view, President Richard Nixon did not obstruct justice by ordering the firing of special prosecutor Archibald Cox. Rather, Dershowitz says, Nixon obstructed justice by telling subordinates to lie to the FBI, by paying hush money to potential witnesses against him, and by destroying evidence. By this logic, Trump could fire Mueller or Rod Rosenstein for any reason without criminally obstructing justice.

Whether Dershowitz is right involves a complex legal argument that can't objectively be resolved. Those who disagree with him, including University of Chicago Law School professors Daniel Hemel and Eric Posner, argue that a president obstructs justice when he interferes with an investigation for a corrupt motive -- which, presumably, would include firing an investigator who might uncover something bad about him. Generally speaking, assessing motive is a dodgy business in the law -- and (former federal judge Nancy) Gertner hastens to point out that firing Comey isn't the only basis for obstruction charges that could be levied against Trump -- but Dershowitz's argument isn't crazy.

What's unclear is why he's making it at all. Almost no legal experts think Trump will face criminal obstruction charges. A sitting president has never been indicted, and a pair of Justice Department legal opinions, from 1973 and 2000, hold that a sitting president cannot be tried or indicted. Former Solicitor General Walter Dellinger recently argued that there's more wiggle room regarding indictment, and of course the opinions could be revisited, but criminal charges against Trump seem highly unlikely.

So what is the argument about? When TV pundits talk about "obstruction of justice," they're not really talking about the statutorily defined crime. They're using it as a kind of shorthand for attempting to rise above the law -- the kind of thing that might trigger Congress to launch an impeachment proceeding. Arguing that Trump couldn't be impeached for corrupt actions -- as Dershowitz says is also true under certain fact scenarios-is a fundamentally different matter. "This isn't a civil libertarian position," Gertner said. "It's an authoritarian position. If anything, it purports to talk about constitutional power. It isn't Alan's usual bailiwick and in my opinion it is false."

In the West Village, Dershowitz went even further down that path, and argued that the statutory definition of "obstruction of justice" would still be relevant in an impeachment trial, over which the chief justice would preside. Dershowitz argued that the presence of the chief justice at an impeachment trial, and the inclusion of criteria for impeachment in the Constitution, proves that the process is not purely political and that legal standards should still be relevant. In such a proceeding, Dershowitz said the first thing he'd do is to file a motion to dismiss -- in other words, a motion that the alleged conduct did not meet the minimal legal threshold. It's the weakest part of Dershowitz's argument.

"It is inconceivable to me that Chief Justice (John) Roberts would accept an argument that the president is above the law -- more immune than King George was," (former ACLU national legal director Burt) Neuborne told me from Stanford, where he is teaching this semester. "In the real world, the argument wouldn't last five minutes." (Longtime Dershowitz friend Harvey) Silverglate said, "What Trump has done isn't appropriate for criminal charges, but much of what he has done would be grounds for impeachment." Silverglate rejected the notion that somehow the Supreme Court would swoop in and dismiss impeachment charges on legal grounds. "I don't see how a decision to impeach would be subject to judicial review," he said.

"If Alan is right," Neuborne concluded, "then the president is above the law and we have a very different system than we think we have."
So yeah, just because you've got one lawyer supporting your side, it doesn't mean his opinion is infallible. ;)

My problem with Fox News in general is that it was never meant to be a news network -- not in the sense of traditional journalism, and not in the sense that you guys are thinking of it, either. When Rupert Murdoch started Fox News, he aimed it at a particular demographic -- older, conservative white males -- and created programming that supported their social and political views. He wasn't interested in presenting any semblance of an alternative news operation; he wanted to attract eyeballs for his advertisers. "Fair and balanced" wasn't a description of its content -- it was an advertising slogan.

I mean, it's clearly worked, and kudos to Murdoch for his execution of his idea. But he never gave a shit about the impact of his enterprise on political discourse in America, or even whether he was educating his viewers instead of lying to them; he was ever only in it for the money.

Which brings me to "Fox and Friends." Basically this show is aimed at Trump. They tell him what they think he wants to know. And it works -- Trump is a loyal viewer. He live-tweets it during "executive time," for gods' sake.

And you've gotta admit, he fits squarely in the network's demographic...
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Post by TheFallen »

IMV (and again an uninformed and thus necessarily generalistic opinion), people are still making this a specific party political issue and thus about Trump, when it really actually isn't.

It strikes me that the current Constitutional Law vs Congressional Law situation is not at all clear. Or at least that's how it seems. And I'm actually slightly surprised that this should be the case in the 21st century USA. Anyhow...
In Alianthat's cited article it was wrote:"If Alan is right," Neuborne concluded, "then the president is above the law and we have a very different system than we think we have."
Isn't that the point? You guys just don't categorically know what system is in play? It's unclear.

Isn't that therefore what needs sorting out and establishing beyond doubt first? What the current "rules" mean. You seriously need to know for sure whether the system you've got is in fact "very different from what you think you've got".

Once you've had that finalised, you can then decide if those "rules" need changing or not... and if you decide they do, then start the process of trying to change them.

So... the above necessarily needs to precede any conversation on whether ANY sitting POTUS - let alone Trump - has ever CRIMINALLY abused or is currently CRIMINALLY abusing the apparently already constitutionally granted powers that go along with the office in carrying out his duties.

Mind you, I haven't got a clue how this would be finalised? By SCOTUS, I presume? But again I think I'm right in saying that SCOTUS only rules on actual cases brought before it and not hypothetical/conceptual/"Would you 9 mind clarifying this for everyone once and for all?" type situations.

(From the not very much that I've read, I suspect the answer is "No, it is impossible under the existing Constitution for a POTUS to criminally abuse the already granted powers that go along with the office in carrying out his duties." And if so, then those unhappy with this situation would instead need to look to get the Constitution changed, rather than futilely bitching about the current incumbent at the White House. Because that's not where the problem would actually lie - it wouldn't be in a flawed POTUS, it'd be in a flawed Constitution).

Or to put it more pithily, if the above is accurate, don't blame the player, blame the game. But as before, WTFDIK...
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Post by Skyweir »

Mmm.. good post TF .. I enjoyed reading it.

You make some very interesting observations.. and some with the benefit of Alis input too.

As far as changing the Constitution... to my mind thats a no go. Such an attempt imv would be lengthy, fraught with difficulty and most likely unsuccessful.

As you say unless this question is challenged SCOTUS is unlikely to make a concrete ruling on it. But a challenge is not out of the realm of possibility.
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