By Frank Bowman

In a series of recent posts, I have been considering whether Mr. Trump could be criminally prosecuted or impeached for violation of various obstruction of justice statutes in connection with Mr. Trump’s meeting with and subsequent firing of FBI Director James Comey.  In one of these posts, I disagreed with Professor Alan Dershowitz’s contention that Mr. Trump could not be guilty of obstruction given the facts laid out by former Director Comey.

         Professor Dershowitz, who was my criminal law professor back in the spring of 1977 (a fact that suggests neither of us is in the first blush of youth) was kind enough to respond to my post.  He writes:

With all due respect , you’re asking the wrong question. Any overbroad statute can be stretched by clever law prof arguments to fit questionable conduct by a political enemy. The same kinds of arguments could be made for finding Hillary Clinton guilty under half a dozen statutes. That’s what law profs do in the classroom. The real question is why are so many liberal profs, who are generally opposed to this excercise when it is directed at their political allies , so anxious to give more power to prosecutors? Don’t they see the precidential [sic] dangers to civil liberties? 

Would they really be engaging in the same conceptual stretches if it were President HC who were being investigated. 

The entire exercise confirms the partisan nature of criminalizing political differences by both sides. And a point of personal privilege. Please don’t lump me with Gingrich. He would be making your argument if the investigation were against HC. I’ve been making the same argument since before you were my student.

With equal respect, I find in Professor Dershowitz’s brief comment several misconceptions, along with several important admonitions.

The misconceptions

1) My argument about possible obstruction by Mr. Trump —  In my post, I disagreed with Professor Dershowitz’s categorical assertion that Mr. Trump did not violate federal obstruction of justice statutes in relation to the Comey/Flynn/Russia investigation matter. I argued that Mr. Trump might have violated one or more of those statutes, but that proving it, particularly the mental state element of “corruptly,” would be extremely difficult.  Moreover, I argued that, given the constitutional position of a president as head of the executive branch vested with wide discretionary authority in criminal cases, such a case would, in practice, be nearly impossible to make absent proof that Mr. Trump, his family, or close associates had committed some other crime and that Mr. Trump knew or suspected that an FBI investigation would reveal it.

This does not seem to me to be a “clever law prof argument” stretching an overbroad statute “to fit questionable conduct by a political enemy.”  Rather, I hope it is a careful, cautious, hardheaded legal argument informed by statutory text, caselaw, and almost four decades of personal experience as a federal and state prosecutor, sometime defense lawyer, and (lastly) law professor.

I should add that I haven’t yet gotten to discussion of the obstacles to an obstruction prosecution posed by constitutional doubt about whether a sitting president can be criminally charged, the Justice Department’s longstanding policy position that it would not do so, and the possibility that, even if indicted, a president could pardon himself.

In short, although I forgive Professor Dershowitz for not ploughing through every nuance of my long and complex analysis, had he done so, he would have discovered that while I think his published analysis is, to be candid, too simplistic, we agree that, on the currently known facts alone, proving Mr. Trump guilty of the crime of obstruction of justice is in the highest degree unlikely.  What the future may hold is another matter.

2)  The purpose of this blog — Which brings me to the point of this blog.  Professor Dershowitz and I would surely agree that odds of Mr. Trump being impeached and removed from office are tiny.  Leaving all other considerations aside, so long as Republicans control both houses of Congress, impeachment is a liberal fantasy (unless Mr. Trump really does gun someone down on Fifth Avenue, and even that might not do it).  But midterm elections are coming and that purely political obstacle might, I repeat might, be removed.

In the meantime, impeachment talk is everywhere.  Most of it is grossly uninformed.  The lack of information and dispassionate analysis is itself dangerous.  For Mr. Trump’s most ardent foes, the information void fuels hope of a sudden resolution to a problem which is, almost certainly, only resolvable at the ballot box.  Disappointment of that hope could lead to unhealthy disillusionment, despair, and disengagement.  For Mr. Trump’s supporters and defenders, the information void fosters equally unjustifiable, and perhaps even more dangerous, fantasies of presidential immunity to the law, established political norms, and the constitution itself.

The point of this blog is to inform the conversation.  To provide laymen some legal insights.  To engage lawyers and scholars in serious conversation.  To channel impeachment debates, so far as possible, away from emotion and toward careful analysis of law, history, and the public good.

Professor Dershowitz’s valid insights

I take Professor Dershowitz’s main points to be: (1) deploying criminal processes against political actors is a dangerous business, posing real risks to democracy unless the greatest care is taken; (2) the same is true about an over-readiness to start talking impeachment as soon as an election produces a president one does not like; and (3) liberals too eager to use these tools against Mr. Trump risk looking like hypocrites.

I take all these admonitions seriously.  I am particularly conscious that my introduction to the law of impeachment came during the Clinton mess in which I, a Democrat, argued that, although President Clinton had probably committed impeachable offenses, Congress ought not impeach him.  I recognize that I have an obligation to apply the same degree of rigor and skepticism to claims that Mr. Trump – of whose personality, character, and policies I deeply disapprove — should be impeached.  Whether I can achieve that level of intellectual self-discipline remains to be seen.  But I promise to try.

That having been said, I find Professor Dershowitz’s almost contemptuous dismissal of the prospect that Mr. Trump may have committed obstruction of justice or other criminal – and thus potentially impeachable – offenses a little too stagey, a bit too much in his character of the contrarian curmudgeon, to be convincing.

It is all very well to be cautious about criminalizing politics or reflexively crying “impeachment” as a remedy for electoral failure.  Those are appropriate cautions in ordinary times, or anything approaching them.  But, even the most objective, equable, tolerant observer must, if candid, recognize that Mr. Trump represents an entirely new, and possibly dangerous, phenomenon in American history.   It is a phenomenon that may require recourse to extraordinary measures.  This blog is devoted to a careful consideration of that eventuality.