Dershowitz: Firing Comey not an obstruction of justice

An absurd argument is now being put forward by some Democratic ideologues: namely that Trump engaged in the crime of obstructing justice by firing Comey.

By: Alan M. Dershowitz, The Gatestone Institute

Whatever one may think of President Donald Trump’s decision to fire FBI director James Comey as a matter of policy, there is absolutely no basis for concluding that the President engaged in a crime by exercising his statutory and constitutional authority to fire director Comey. As Comey himself wrote in his letter to the FBI, no one should doubt the authority of the President to fire the director for any reason or no reason.

It simply cannot be a crime for a public official, whether the president or anyone else, to exercise his or her statutory and constitutional authority to hire or fire another public official. For something to be a crime, there must be both an actus reus and mens rea – that is, a criminal act accompanied by a criminal state of mind. Even assuming that President Trump was improperly motivated in firing Comey, motive alone can never constitute a crime. There must be an unlawful act. And exercising constitutional and statutory power cannot be the actus reus of a crime.

So let’s put this nonsense behind us and not criminalize policy differences as extremists in both parties have tried to do. Republican and Democratic partisans often resort to the criminal law as a way of demonizing their political enemies. “Lock her up,” was the cry of Republican partisans against Hillary Clinton regarding her misuse of her email server. Now “obstruction of justice” is the “lock him up” cry of partisan Democrats who disagree with President Trump’s decision to fire Comey. I opposed the criminalization of policy differences when Texas Governor Perry and Congressman Tom Delay were indicted, and I strongly oppose the investigation now being conducted against Prime Minister Netanyahu. The criminal law should be used as the last resort against elected officials, not as the opening salvo in a political knife-fight.

Partisanship Has ‘No Limits These Days’

The debate over the propriety of the President’s actions, about which I have opined repeatedly, should continue, but let’s take the allegations of criminal obstruction of justice out of this important debate. There is more than enough fodder for a debate over the merits and demerits of the President’s actions without mudding the waters with absurd charges of criminality.

Partisanship seems to have no limits these days. Both parties are equally at fault, as are extremists among the public and within the media. It is getting harder and harder to have a nuanced debate about complex political issues. Everything is either evil or good, nothing has elements of both. Actions either deserve criminal indictment or the Nobel Prize. Nobody benefits from this kind of discussion. So let’s agree to disagree about important issues, but let’s not distort the debate with extremist slogans like “lock her up” or “obstruction of justice.” We are better than that.

The author is a renowned defense attorney, best-selling author and Harvard Law School professor emeritus. 

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