Dershowitz Tweetstorm: There's No Evidence of Obstruction, and Inventing Crimes is Dangerous

Guy Benson
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Posted: Jun 12, 2017 1:05 PM
Dershowitz Tweetstorm: There's No Evidence of Obstruction, and Inventing Crimes is Dangerous

Harvard law professor Alan Dershowitz, a liberal Democrat, has been one of President Trump's most effective defenders in the ongoing Russia-collusion-obsruction saga.  Dershowitz is by no means a supporter, or even an admirer, of the president, but he's showcased a laudable ability to separate his political preferences from his legal analyses on some important matters.  The professor has been making the rounds, in print and on air, explaining why hyperventilation about impeachable offenses and "obstruction of justice" is at best premature, based on the available evidence.  In a string of Sunday evening tweets, he went further, arguing that a fixation with criminalizing one's political opposition is dangerous for the republic -- an irony, given Trump opponents' own steadfast belief that it's Trump who's endangering the republic:


That "show me the man" quotation is an allusion to a telling, perfectly authoritarian quip from one of Stalin's  top associates, describing how someone deemed to be an enemy of the state can always be railroaded, by hook or by crook.  Applying that formulation to Trump is hyperbolic, but that's not exactly Dershowitz's point.  His point isn't that Trump is necessarily a victim here, but rather that it's an ugly and illiberal form of politics to hastily or impulsively conflate political disagreements with criminal infractions.  Some lefty legal eagles dissent from Dershowitz's view, though those who say there's insufficient evidence of collusion and/or obstruction range a broad spectrum -- from Sen. Mike Lee, to Sen. Lindsey Graham, to Sen. Joe Manchin, to liberal law professor Jonathan Turley.  Among Dershowitz's (and Trump's) critics on this subject is fellow Harvard law faculty member Laurence Tribe, who touted an upcoming CNN appearance in which he planned to refute his colleague's "fact free" reasoning.  Dershowitz pointedly noted that he wasn't invited to the party:


The other side was represented, however -- and rather ably so -- by another law professor who built the case that the current facts on the ground do not reflect a violation of obstruction of justice statutes:

These debates will rage on, but without more concrete evidence, the suggestion that Trump has committed 'high crimes and misdemeanors' worthy of removal from office remains a bridge too far for most Americans.  As we noted earlier, even a terrible recent poll for Trump demonstrated that only the hardcore Democratic base agreed that Trump has acted illegally.  The impeachment crowd is overreaching.  The White House doesn't help its case, however, by careening among incoherent and incomplete explanation of key developments, including direct contradictions at the highest levels of the president's team and family.  I'll leave you with an important observation from Washington Examiner columnist Byron York, whom I interviewed on Hugh Hewitt's national radio program this morning.  Namely, the heart of the would-be Russia scandal seems to have been torn out, or at least set to the side, yet the president's undeterred critics charge ahead in pursuit of new, tangential lines of attack:

Fired FBI Director James Comey's testimony before the Senate Intelligence Committee marked the full shift of the Trump-Russia investigation from a probe dedicated to discovering collusion to a probe dedicated to proving the president obstructed justice.  Democrats at the Comey hearing barely touched on collusion, which appears to have turned out to be a dry hole. When it did come up in Comey's appearance, it was during questioning from Republicans, who wanted to highlight their point that collusion -- the core of the case and the reason everybody got so excited in the first place -- has so far turned out to be nothing. To Democrats, that no longer matters. Now, it's all about obstruction of justice, or alleged obstruction of justice, or fantasized obstruction of justice, depending on your partisan perspective. Senate Democrats focused almost exclusively on obstruction in their questioning of Comey, and their House counterparts are sure to do the same. As far as the Justice Department investigation of the president is concerned, we know that as of the time Comey was fired on May 9, there was no investigation of the president concerning collusion, which strongly suggests that after 10 months of probing, authorities had nothing against him on that issue.

One might argue that the lack of hard collusion headlines splashed across the front pages of the New York Times or the Washington Post is an even stronger indicator on this point.  Agenda-driven leakers have funneled story after story to these papers, keeping virtually nothing secret, aside from -- surprise -- the Trump-friendly detail that James Comey had indeed assured the president three times that he wasn't being targeted by the FBI.  In fact, the article that came closest to drawing a clear line to collusion was disclaimed as "almost entirely wrong" by none other than Mr. Comey late last week.  All of which is to say that Trump's inconsistencies, lies, and changing stories ought to matter.  But so should the core facts that (a) we have zero evidence of collusion, which was the whole point of all of this, and (b) we have zero evidence that Trump sought to cover up that utterly unproven "underlying crime" by trying to impede the investigation into it.  As Comey and his FBI successor have each attested under oath, no political pressure has been brought to bear on that probe.  That's really important.  

But even if no fresh, damning proof emerges, these seemingly-exculpatory facts might go down the drain if Trump follows some of his supporters' advice and ends Robert Mueller's special counsel investigation.  Even if you share Newt Gingrich's view that its provenance is the illegitimate "poisoned fruit" of Comey's admitted machinations, moving to shut down or disrupt that inquiry for the first time would be the equivalent of installing a neon, flashing "we're guilty" sign on the White House facade.  Share the frustration, ignore the advice:

There are already enough sources of smoke to give the president's press team and lawyers heartburn.  Foolishly knee-capping Mueller would be perceived by millions of undecided Americans as a full-blown fire.