“Comey’s written statement, which was released in advance of his Thursday testimony before the Senate Intelligence Committee, does not provide evidence that Trump committed obstruction of justice or any other crime,” wrote Prof. Alan Dershowitz in the Washington Examiner on Thursday (History, precedent and James Comey’s opening statement show that Trump did not obstruct justice), insisting that the former FBI director’s statement “strongly suggests that even under the broadest reasonable definition of obstruction, no such crime was committed.”
In the February 14 conversation that was recorded fastidiously in Comey’s notes and repeated by him in his testimony before a Senate committee on Thursday, the president said that the disgraced and fired Lieutenant General Michael Flynn “is a good guy,” to which Comey replied, “He is a good guy.”
The president then said, “I hope you can see your way clear to letting this thing go.”
Comey stated that he had understood this comment to be a reference to the Flynn investigation and not “the broader investigation into Russia or possible links to the campaign.” In that context, Comey had already reassured the president that “we were not investigating him personally.”
Comey claims he understood “the President to be requesting that we drop any investigation of Flynn in connection with false statements about his conversations with the Russian ambassador in December.”
“Comey did not say he would ‘let this go,’ and indeed he did not grant the president’s request to do so,” writes Dershowitz, “Nor did Comey report this conversation to the attorney general or any other prosecutor. He was troubled by what he regarded as a breach of recent traditions of FBI independence from the White House, though he recognized that ‘throughout history, some presidents have decided that because ‘problems’ come from the Department of Justice, they should try to hold the Department close.'”
“In Great Britain, Israel and other democracies that respect the rule of law, the director of public prosecution or the attorney general are law enforcement officials who, by law, are independent of the prime minister,” notes Dershowitz, stressing that this is not the case in the US. Instead, “the president can, as a matter of constitutional law, direct the attorney general, and his subordinate, the director of the FBI, tell them what to do, whom to prosecute and whom not to prosecute. Indeed, the president has the constitutional authority to stop the investigation of any person by simply pardoning that person.”
Dershowitz, a life-long Democrat and a personal friend of the Clintons, who authored a rousing attack against the Supreme Court’s midnight ruling on Gore v. Bush in 2000, has nevertheless objected openly to Democrats who displayed signs saying Trump is not their president. “He is everybody’s president,” Dershowitz wrote in November, after Trump’s surprise victory.
Still, regardless of whether or not he wants the president to succeed or be impeached, the Havard law professor insists that Comey’s statement “may provide political ammunition to Trump opponents, but unless they are willing to stretch Comey’s words and take Trump’s out of context, and unless they are prepared to abandon important constitutional principles and civil liberties that protect us all, they should not be searching for ways to expand already elastic criminal statutes and shrink enduring constitutional safeguard in a dangerous and futile effort to criminalize political disagreements.”