Constitution Daily

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Scholars debate Trump, Comey and obstructing justice

June 6, 2017 by NCC Staff


Read a full transcript of our recent podcast debate between Alan Dershowitz and Laura Donohue about presidential power and the obstruction of justice, hosted by National Constitution Center president and CEO Jeffrey Rosen.

On Thursday, former FBI director James Comey is set to testify before the Senate about President Donald Trump’s alleged requests related to Comey’s investigation of Russia’s role in the 2016 presidential campaign.

The general question presented to our guests was: Does President Trump’s handling of the Russia investigation amount to obstruction of justice?

Alan Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. He’s been called the nation’s most peripatetic civil liberties lawyer, and one of its most distinguished defenders of individual rights.

Laura Donohue is a Professor of Law, and Director of the Center on National Security and the Law, and Director of the Center on Privacy and Technology at the Georgetown University Law School.

If you would like to listen to this discussion, go to:

Jeffrey Rosen

Let’s jump right in. Alan, you wrote a fascinating op-ed for the Washington Examiner arguing that the firing of James Comey does not meet the legal definition of obstruction of justice. Tell us what the legal definition is, and why you believe that the Comey firing doesn’t meet it.

Alan Dershowitz

Well, I think there are three issues. The first issue is, what position should civil libertarians, liberals, people who care about the rule of law, take on this issue? And I believe that even if it’s a close question, they should not be in favor of expanding an already elastic obstruction of justice statute to cover somebody whose politics we don’t like.

Second is, does precedent establish that any individual could be indicted for the conduct alleged against President Trump? I think the answer to that is mostly no, that mostly the courts say that you can’t be indicted for obstruction of justice for committing completely lawful conduct. There are one or two cases—one particularly in Chicago, that suggests that in a close case, where you had a lawyer who was filing frivolous lawsuits in an attempt to prevent a prosecution, could be.

And then the third, the third issue, is whether the Constitution would permit the indictment of a president for exercising his statutory and constitutional authority within the unitary executive to fire the head of the FBI. And I think the answer to that is and should be clearly no. And my concern is making sure we don’t adopt a precedent because we don’t like Trump’s policies which could then be used against any political target, like a loaded weapon lying around.

Jeffrey Rosen

Thank you so much, Alan, for setting out the issue so clearly and so well. Laura, in your fascinating op-ed in US News, “The Question on Everyone’s Mind,” you say that there are three criteria for obstruction of justice: the proceeding must be underway, the defendant must be aware of the proceeding, and the defendant must have intentionally endeavored corruptly to influence, obstruct, or impede it. Tell us why you believe that the firing of Comey may have met those three criteria and why this may be obstruction of justice.

Laura Donohue

Yeah. So, I think it’s clear, as Alan said, that in the United States, it was entirely legal for the president to fire James Comey. That’s, I think, pretty clearly in his wheelhouse.

If you look at the Decision of 1789, when Madison was arguing that Vesting Clause of Article 2 gave the president unlimited removal power over all executive officials, we had a divided Senate in that case. It was ten to ten. And the vice president settled the decision in favor of the president—of course, not surprising. It was a tie-breaking vote. That was John Adams. And for the past two hundred and twenty years, pretty much as a de facto matter, we’ve had broad presidential removal powers.

So in Myers v. United States in 1926, this was a case where postmasters could be appointed and removed with the advice and consent of the Senate. When [Woodrow] Wilson removed Myers without the Senate approval, the court initially said it was an unconstitutional infringement of the president’s power to say that the president couldn’t remove him. And then you had subsequent case law that pretty much upholds this, unless that position is a position where the individual holds quasi-legislative, quasi-judicial, and quasi-executive power. So like in the Federal Reserve Board or SEC or Federal Trade Commission, you might have a different situation, where the Senate would have a role to play. Other than that, it’s pretty much firmly in the president’s wheelhouse.

With that said, you cannot take an action—if that action is legal—to obstruct justice. So in U.S. law, the obstruction of law is interference with the orderly administration of law and justice. And there are numerous places in U.S. code where the system made a crime—which makes it illegal to interfere in court proceedings. So no one in the United States, for instance, may corruptly, or by threats of force, or by any threatening letter of communication influence, obstruct, or impede the administration of law.

Now, in one case, called U.S. v. Warshak in 2010, the Sixth Circuit said that you have these three criteria that you mentioned that have to be met for that offense to occur. The proceeding must be underway, the defendant has to be aware of the proceeding, and the defendant must have, quote, “intentionally endeavored corruptly to influence, obstruct, or impede it.”

Now, corrupt is a very broad definition. It means anything done with an improper purpose. And I think it’s pretty clear that at the time the president fired Director Comey, the first two criteria were clearly met, right? There was clearly a proceeding underway, and clearly the defendant knew about that proceeding. So the real question is whether he intentionally endeavored to prevent that proceeding from moving forward.

And here, I would take a different view than Alan on this, because I think it’s a much more difficult question. And actually, there’s more evidence than one might think about this.

So on the one hand, in his letter where he fired Comey, he’s citing to the attorney general and to the deputy attorney general’s letters and saying that Director Comey had not conducted the Clinton investigation appropriately.

On the other hand, there’s this elephant in the room, is the way that I refer to in the piece that you mentioned, that you have an FBI investigation that’s at a critical juncture. Director Comey is about to report to Congress. You have these statements that come out then in The New York Times, that the president has told a number of people that he wants to try to get rid of Comey, that he’s frustrated with the investigation. There’s a significant amount of other information there that suggests that actually what’s going on is he’s trying to make the investigation go away. And if that’s the case, then we’re much more firmly in the land of obstructing justice.

Jeffrey Rosen

Understanding that you don’t think that policy differences should be criminalized—what would be your response if an argument like the one Laura made were made in court?

Alan Dershowitz

Well, for example, I have probably a hundred times obstructed justice according to Laura’s definition. I go to prosecutors all the time, and I say them exactly what the president said to Comey. You know, lay off my guy. He’s a good guy. I would appreciate very much if you wouldn’t prosecute him. I go much further. I threaten prosecutors. I say, if you dare to prosecute my client, I’m going to raise allegations of misconduct on your behalf. I’m going to take this to the very ends of the earth. I will destroy your career. I will make your life difficult professionally, because what you’re doing is outrageous.

As a criminal defense lawyer, I don’t just ask, the way the president asked. I tell. I demand. I insist. My job is to obstruct justice if I possibly can by every lawful means, because most of my clients are guilty. And by definition, almost every time I win a case on behalf of a guilty client, I obstruct justice. And the idea that we can have statutes like this on the book laying around, that can be used against unpopular criminal defense lawyers or unpopular defendants, is, I think, very dangerous.

I think the strongest argument is one not made by law—or let me make it as a devil’s advocate argument. I think the strongest argument is that although what Trump did was simply say, I would appreciate if you would let it go because he’s a good guy—when the president of the United States, who has the power to fire and hire you, says he would appreciate something, it’s like the godfather giving you a kiss on the cheek and telling you he’d appreciate something. But of course, in the end, Comey rejected it. And he took it not as a command or as an instruction, but rather as a request—now, a request that the president would take into account in making decisions about keeping him.

But I would take the constitutional argument even further. Under the executive—under the unitary executive theory, I think the president of the United States would have the absolute constitutional authority to tell the head of the FBI, you are instructed not to investigate Flynn. You are instructed not to investigate Kushner. You are instructed not to investigate me. I’m your boss. I’m telling you what to do.

Now, would that give rise to an impeachment or some other political consequence? Perhaps. But I think legally, under the unitary executive, the president tells the attorney general and tells the director of the FBI what to do.

An example from history: Thomas Jefferson told his attorney general to prosecute Aaron Burr. He decided who to give immunity to and who not to give immunity to. He called the chief justice of the United States in, his cousin, John Marshall, and said, and said, if you don’t get a prosecution and a conviction of this man, Burr, I’m going to have you impeached.

So historically, the president can tell the prosecutor what to do. Now, since Watergate, we’ve had a tradition of not allowing that to happen, of building a wall of separation between the prosecutor and the president. Presidents don’t talk to prosecutors, traditionally. Traditionally, prosecutors don’t talk to presidents. But that’s a matter of a rule within the Justice Department. Constitutionally, the rule is the Jefferson rule: the president can tell the attorney general who to prosecute and who not to prosecute.

It’s a terrible system. And we should go to the British system, the Israeli system, where you have an independent state attorney, a director of public prosecution, that is not part of the executive branch nor part of the judicial branch. But as long as, in the United States, we have a unitary executive, and we have the Justice Department doing both functions—serving as a minister of justice, advisor to the president on legal affairs, and also chief prosecutor—constitutionally, the president has the authority to go well beyond what it is alleged that Trump did in this case.

Jeffrey Rosen

Fascinating. Thanks so much for that. Laura, your response to both of those strong points—first, that even if Trump asked, Comey rejected it; and more broadly, Alan says that the president should have absolute authority, legally, to say don’t investigate, even if that might be grounds for impeachment.

Laura Donohue

Yeah. So, Alan is not president, right? So when he raises an issue, whether somebody’s he’s defending should be prosecuted or not, it is not the same as the president directing subordinates not to prosecute somebody in contravention of the rule of law. So when he refers to my definition of obstruction of justice, it’s actually not mine. It’s the law. It’s actually what U.S.—18 USC 1515 says in terms of what is obstruction of justice.

So if you look at the definition of what is obstruction of justice, I’ve already given you one. There are others in the law as well which relate specifically to the Comey firing. U.S. law forbids retaliating or taking any harmful actions, quote, “Including interference with the lawful employment or livelihood,” end quote, against any person for providing truthful information regarding a potential federal offense. And that’s under 18 USC 1513 section e.

So Mr. Comey had testified that there was investigation into collusion there, he testified to the House Intelligence Committee that the FBI was investigating connections between the Trump administration and Russia, and now he’s due to testify again. This all suggests that these parts of US code are actually implicated. So it’s not my definition.

It’s also illegal to intimidate or threaten others to, quote, “Influence, delay, or prevent the testimony of any person in an official proceeding,” end quote. That’s 18 USC 1512. Again, not my definition; it’s the legal definition. And at the time he was fired, Director Comey was due to testify to Congress.

So it’s actually—according to the law, these are illegal acts if done by somebody in a position of power, which the president is, over—or was—over Director Comey.

I would add to that, we have seen impeachment of presidents based in part on obstruction of justice. So Nixon, one of his—the first article of his impeachment actually noted that it was in violation of his constitutional duty to take care that the laws be safely executed, that he had obstructed and impeded the administration of justice. President Clinton also, in Article 2 of his articles of impeachment, it said that he had obstructed justice.

So far from being beyond the reach of the law, the president is very much subject to the law. It just goes to the concept of rule of law, which was one of the basic principles upon which our country was founded. It’s this idea that nobody is above the law, that everybody—that the law constrains the exercise of ultimate power. And that applies to everybody, regardless of whether they’re in the judicial branch, the legislative branch, or the executive branch.

Jeffrey Rosen

Thanks so much. Lots there, Alan. Your response?

Alan Dershowitz

But think about if the shoe were on the other foot, if this were Hillary Clinton as the president, and she were being investigated, and her husband, Bill Clinton, were being investigated because he approached the attorney general on the tarmac of the plane. Everybody except me would be on the other side. And I don’t want to claim personal virtue, but I’m talking about me in the collective sense of civil libertarians. The vast majority of Democrats would be making my argument today, saying, what a horrible abuse of civil liberties. Imagine what could happen if the laws which Laura correctly cites and quotes were expanded to apply to this conduct. The Republicans who are now defending President Trump would be screaming for the head of Hillary Clinton and Bill Clinton.

And what I worry about is when you have broad, horrible, horrible statutes like the obstruction of justice statute, or the other ones that she read, that are accordion-like in their elasticity, they can be used by Democrats to attack Republicans, Republicans to attack Democrats. The temptation is there to criminalize policy differences, and the obstructive of justice and these other statutes lie around like loaded weapons.

I’m reminded of what Lavrentiy Beria said to Joseph Stalin: “Show me the man, and I’ll find you the crime.” That’s what Laura is doing. She wants to see President Trump impeached or prosecuted, and she’s doing the very lawyer-like job of going through, combing through the statutes, and finding statutes that could nominally, technically, possibly apply if you stretch them a little bit and spin the facts this way or that way.

I’m arguing that’s a terrible policy, and it’s shortsighted, and it gives short shrift to constitutional and other legal protections. And as a civil libertarian, I’m going to continue making this argument, whether it’s Hillary Clinton who’s being attacked or whether it’s Donald Trump who’s being attacked. And I would suggest that other civil libertarians and people who really, really think about long-term interests of the rule of law ought to be looking at this from a long-term perspective, not from the short-term goal of getting rid of Donald Trump.

Jeffrey Rosen

This is fascinating. Laura, let me ask you—Alan is arguing that these laws should not be stretched in this situation. If you were just descriptively going to imagine what Robert Mueller may report, do you believe that given the existing laws and case law, he is likely to find obstruction of justice or not?

Laura Donohue

So again, I don’t think we can come to a conclusion until that actually plays out in court. So these aren’t pre—and that’s what I wrote about it. I said this is a much harder question, because it’s going to take pulling out these records. It’s going to take going through the tapes. It’s going to take actually looking in detail at this to see if this claim can be upheld or not. But looking at it from the outside, these are the constituent elements of the crime, and this is how it looks so far. This is the evidence on both sides of the question that we’ve seen.

One thing that I’m kind of surprised about, Alan, from your remarks, is that you seem to be arguing for a unitary executive with greater and greater control, with little heed for the politicalization that that would hold. So if you look at the case law on this—the jewels of the Princess of Orange is a good one that comes to mind. When the president directed the non-prosecution in order to be able to return stolen jewels to the Princess of Orange, right, to her family, the court rested its decision in part on the diplomatic and international and foreign affairs powers of the presidency, and the need to give the president leeway in that regard.

In this situation, if that’s what you want, to give the president full leeway, that would introduce more politicalization. And as you note, since Watergate, there’s been a real effort to separate the president from the prosecutorial decisions because this will result in fewer political witch hunts of this sort; that actually, you want some separation there.

And if you do that, and you look at the law, the way the law is written and the way the law can be applied, and if you value rule of law, and you have a situation where the executive, the highest levels of the executive, are under investigation for potential collusion and involvement with a foreign country, that this gets at the basic national security concerns of the country. That you would turn that and you’d politicize that and allow that to be politically directed precisely from those individuals who may have been compromised, I find that really surprising, and actually much more political than looking at the law as it’s actually written.

Alan Dershowitz

Well, I would much prefer to see your approach accepted. I’d like to see us either amend the Constitution or even, perhaps, if we could do it by statute, create a separate division of public prosecution that’s outside of the Justice Department. But that’s not the law today, and that’s not the approach today. And under the principle of lenity in criminal law, when you have vagueness, you always resolve in favor of the defendant, not in favor of the prosecution. When you have exposed facts or applications of the law, you apply those in favor of the defendant.

So I don’t want to see us making policy decisions—which I agree with you about, Laura. I’d like to see it change. I’d love to see a strict separation between the president and prosecution. I’d like to see a strict separation between the attorney general, who’s a political appointee, and prosecution. I’d like to see prosecution decided by professional prosecutor who are not answerable to political figures. But as long as that’s not the law, you can’t suddenly try to expand existing obstruction of justice and tampering with witnesses and other kinds of vague statutes, and apply them criminally to conduct that’s already occurred. Let’s agree, Laura, that we will both work together to try to change the law.

Take another example you gave, collaborating with a foreign country to affect an election. That’s just not criminal. Let’s assume, worst case scenario, Donald Trump personally calls Putin and says, in exchange for you helping me win the election, I promise I will drop sanctions. In fact, I’ll send you a letter to that effect. And there’s no doubt about that. It’s just not a crime, as long as the president hasn’t asked Putin to do anything unlawful or illegal. If he says, in exchange for you helping me win the election by giving me everything that he has already gotten, I’ll promise you not to have sanctions—that’s not a crime. That may violate the Logan Act, but I think we all agree the Logan Act is no longer law. It’s subject to what’s called desuetude. When you have a statute on the books for 210 years and it’s never been used, you can’t just resurrect it, use it against Donald Trump, and then put it back in its crypt and let it rest in peace.

So I think we have a fundamental policy difference between us, Laura, and that is the goal, the function of criminal law. The function of criminal law is to apply only to conduct that is clearly, unambiguously criminal at the time it occurs, not to use the criminal law to try to affect policy benefits for the future.

Jeffrey Rosen

Laura, response to those last points? And then we’ll move to executive privilege and wrap up.

Laura Donohue

Okay. So where we disagree with that is, first of all, if you have somebody who’s a foreign power or an agent of a foreign power, like Flynn, for instance, in the United States, and he does not register as being a foreign power, an agent of a foreign power in the United States, that’s illegal. So if you’re asking your campaign people to actually act on behalf of foreign powers and they’re not registering, that is a criminal act in the United States.

Beyond that, the Electronic Communications Privacy Act, the Wiretap Act, the Stored Communications Act—it is illegal to break into computer systems and to collect emails. That’s a crime in the United States. And if these are the types of issues that are underway in an investigation, and the president just wants that investigation to go away because the president has some top people in his administration that might be implicated in that—and we don’t know how high that investigation goes—and there are criminal activities that may be underway, to then obstruct that investigation is also a violation of the law, regardless of whether somebody is the president or the attorney general or the deputy attorney general, to try to interfere in that investigation.

Alan Dershowitz

Well, first of all—

Laura Donohue

On your comment about independent counsel—

Alan Dershowitz

Ronald Reagan would be in jail under your principles, right?

Laura Donohue

On your comment on independent counsel, that’s what we had with the Ethics in Government Act, which, as you know, was introduced after the Saturday Night Massacre, when Nixon ordered a prosecutor to be fired, right? Now, the question was whether this was constitutional. That was settled in Morrison v. Olson. The problem was that they were unanswerable—plus they became extremely expensive, right?

So currently our special counsel that’s appointed is under the Code of Federal Regulations in 600, that the attorney general will appoint a special counsel when you have a criminal investigation that’s warranted. That means you have to have specific and credible information alleging that certain high level officials in an administration have committed a serious federal offense or the Department of Justice has a conflict of interest, and it’s in the public interest. And that decision is not reviewable. That has to be a lawyer from outside the government with a reputation for integrity. They have to have the appropriate experience and such so their decisions will be supported by informed understanding of criminal laws, policies, etc.. That’s pretty much the position that we currently have. And in those investigations—and by the way, the courts have found that an FBI preliminary investigation is sufficient. We have grand jury subpoenas that have been issued. That counts as an investigation with administrative procedure underway. So any interference in those investigations amounts to an obstruction of justice.

Alan Dershowitz

But when you apply that, you say any interference. And you haven’t answered my question. I try my best to interfere with ongoing investigations, as long as I do it lawfully. I try in every possible way to stifle investigations that are ongoing. You’re not distinguishing between presidents and ordinary criminal lawyers and ordinary defendants.

And regarding your issue about collaboration with other governments, Ronald Reagan would be in jail or would have been sent to jail under your principles. We know that the Reagan administration had the release—with a country we had no relationships with, that of Iran, an enemy country, and the purpose was to delay the release of American hostages, to keep them in prison, to deny them their rights for a number of weeks or months until Reagan got into office, so that he could take credit for the release of the hostages rather than Jimmy Carter getting the credit. There are many, many other instances.

The idea of saying that a president or a campaign has to register as a foreign agent when they’re trying to negotiate with a foreign country during their transition would be blatantly unconstitutional and interfere with the power of the president. And what you’re doing is you’re introducing a lot of modern rules, that are desirable rules that have been established. From a constitutional point of view, however, we do have the division of authority between the executive, the legislature, and the judiciary, and the courts may not interfere with the operation of the executive branch of the government, which deems itself today to be a unitary executive. And I wish we could change that, but we haven’t changed it.

And I think the dangers of adopting your approach—if you put the shoe on the other foot, and if you give the Republicans that power over a Democrat who is elected and who has some problems like Hillary Clinton would have, particularly with her husband’s meeting on the airplane—I have to ask you the question directly, Laura. Would you be in this enterprise if it were Hillary Clinton who were being prosecuted, and the Republicans were trying to put her in jail, would you be combing through every statute, trying to find some hook on which to hang the prosecution? Would you be doing that?

Laura Donohue

I don’t think you have to comb through every statute. It’s a pretty clear statute. Any interference with the orderly administration of law and justice—that’s how Black’s Law Dictionary understands obstruction of justice. And as a statutory matter, it’s corruptly, or by threats of force, or by any threatening letter of communication, to influence, obstruct, or impede the administration of law, under which any pending proceedings being conducted by a federal department, agency, or Congress. That’s 18 USC 1505.

So this isn’t combing through the law. This is a pretty clear example where you have statutory language, and that’s the statute, and it looks like there might be a problem there, in terms of what has happened. So should an investigation that has been underway, which has issued subpoenas and grand jury investigation—you have a president who has articulated all of these concerns to others. On the other hand, as I’ve noted before, you have a letter that says, no, the firing was based on this other concern that was raised. And that all is relevant and certainly probative.

But to say that that statute doesn’t exist—you know, Alan, it sounds like your concern is with the statute. In which case, you change the law. But you don’t say you just decide which laws we’re going to apply and which laws we’re not going to apply. So you shouldn’t decide, oh, we’re going to apply law A, but we’re not going to apply law B; and we’re not going to apply law C, but we like law D, and so we’re going to apply law D. Look, either you apply the law or you don’t apply the law. And in a country that’s under rule of law, you have a concept that nobody is themselves above the law. And if that is a basic principle of this society, then you don’t pick and choose when you apply that law or not.

Jeffrey Rosen

I’m going to jump in as We the People moderator. This is a riveting debate, and it’s really educated our listeners. I think we don’t have time for executive privilege. We’re going to have to try to get you both back, because it’s so incredibly illuminating. But in the spirit of We the People, we always have great closing arguments. And I’m going to ask Alan and then Laura to tell us why you believe or not that the firing of Comey qualifies as obstruction of justice. Alan, first closing argument to you.

Alan Dershowitz

Well, I’m going to use my moment to again reiterate my direct question: would Laura be on this show, would she be advocating what she’s advocating, if the shoe were on the other foot, if it were Hillary Clinton who were being prosecuted, and her husband’s actions in going to the tarmac of the airplane and speaking to the attorney general? Every one of these arguments that she’s made would applicable to Bill Clinton. And unless she’s prepared to unequivocally state that she would be making exactly the same arguments and she would be on the show seeking the prosecution of Hillary Clinton and Bill Clinton, I think we have to concede the dangers of this kind of argument being used selectively against the political opponent.

I acknowledge that there are words in statutes that could be stretched to cover this conduct. But they could be stretched to cover much, much more conduct that we all believe is constitutionally protected. So I want to take a big picture view, and I want to talk about the dangers of expanding these existing statutes which are already too vague. From a civil liberties point of view, I can imagine no worse statute than the objection of justice statute or the tampering with witnesses statute. And then to expand it and stretch to apply to conduct that we find politically disagreeable, I think puts America and all Americans at great risk. Today it’s Donald Trump. Tomorrow it could be you. Tomorrow it could be a Democrat.

And so I think we have to think seriously about whether we want to stretch and expand the criminal law to cover conduct we find disagreeable. I don’t, as a civil libertarian.

Jeffrey Rosen

Thank you so much for that, Alan Dershowitz. Laura Donohue, last word to you.

Laura Donohue

Oh, thank you. So the definition of the rule of law is subjecting arbitrary power to the constraints of the law. That’s a basic principle that we have in society. And it doesn’t matter who is in the White House, whether it’s Hillary Clinton, whether it’s Donald Trump, whether it’s Eisenhower, whether it’s Nixon, whether it’s Ford, whether it’s Carter—whoever is in the White House, that individual has to be subject to the rule of law.

And what is dangerous is making exceptions to that. That is the primary, the principal animating value behind our system. It’s something that the founding generation intimately understood. It’s something that each generation must again confront and decide to renew or not.

In this circumstance, I don’t think it’s clear whether we have obstruction of justice or not, as I wrote. Certainly those first two elements are met. Whether the last one is is a more difficult question, but one that has very sobering implications for our system and how we think about rule of law. If you have an investigation underway where individuals have been—there’s been subpoenas issued, criminal subpoenas issued for illegal activities, and those individuals are in the highest offices of government, that is precisely why, throughout our history, we have had special counsel, we have had independent counsel.

So Ulysses S. Grant in 1875, for instance. He appointed John Henderson to look at the Whiskey Ring scandal, which was millions of dollars in federal taxes on liquor that was siphoned off to this big criminal enterprise that had distillers and storekeepers, all these individuals working for them. The secretary of the treasury, without telling the president, broke into this politically powerful ring and ended up recovering millions of dollars.

In 1952, we have Truman, who appointed Newbold Morris to look at the Bureau of Internal Revenue after Congress had said, look, we need a special prosecutor.

We have the attorney general, Elliot Richardson, who appointed Archibald Cox as the special prosecutor against Nixon. And in Nixon v. United States—and we’ll get to that in a moment—we have—the executive branch does not have an indefinite, unqualified immunity from producing documents. There is no executive privilege that goes to everything in the executive branch because of this basic concept of rule of law.

And so in this case, we have a criminal case which is building against individuals in the highest levels of government. If the intent behind dismissing Director Comey as legal—and I would say that that action was entirely legal, both as a statutory and a constitutional matter, although some people take issue with that. They say that Director Comey was in his third year of a five-year term. He can only be dismissed for cause, and there wasn’t sufficient cause. Even if that action is legal, legal action cannot then be used to undermine justice. This goes to the basic animating values of this country as one grounded in the rule of law.

Jeffrey Rosen

Thank you so much, Laura Donohue and Alan Dershowitz, for a really riveting, illuminating, and substantive discussion. If we’re lucky, we’ll be able to get you back on the We the People podcast to discuss this unfolding constitutional drama as it emerges. But for now, I want to say, Laura, Alan, thank you so much for joining.

Laura Donohue

Thank you.

Alan Dershowitz

Thank you.

(Transcribed by and lightly edited by the National Constitution Center.)


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