Dershowitz: 'You Cannot Have Obstruction of Justice When the President Exercises His Constitutional Authority'

Wednesday on CNN’s “AC 360,” Harvard law professor Alan Dershowitz insisted the argument that President Donald Trump had obstructed justice with his reported remarks to former FBI Director James Comey was flawed given the president of the United States’ constitutional powers.

Dershowitz explained to host Anderson Cooper that as president, Trump could have instructed Comey not to pursue an investigation against former National Security Advisor Michael Flynn or he could have pardoned him and have made the investigation a moot point.

“Well first of all, let’s look at the big constitutional picture,” Dershowitz said. “The president could have told Comey you are commanded, directed to block the prosecution against Flynn. The president has the right to do that. Comey acknowledges that. He says in the statement that historically, historically presidents have done that to the Justice Department. But in the last few years, we’ve had a tradition of separation.”

“But that tradition doesn’t create crime,” he continued. “Remember also what the president could have done – he could have said to Comey, ‘Stop this investigation. I am now pardoning Flynn. That’s what President Bush did in the beginning of the investigation of Casper Weinberger, which could have led back to the White House to the first President Bush, President Bush on the eve of the trial pardoned Casper Weinberger, pardoned six people and special counsel Walsh said, ‘This is outrageous. He’s stopping the investigation. Nobody’s talking about obstruction of justice. You cannot have obstruction of justice when the president exercises his constitutional authority to pardon, his constitutional authority to fire the director of the FBI or his constitutional authority to the director of the FBI who to prosecute, who not to prosecute. So let’s get out of the weeds and let’s look at the big constitutional question.”

“What I am telling you is even if he did want to impede it and if he did impede it, that is his constitutional power,” he added. “He has the right to say, ‘You will not investigate Flynn. The best proof of that is he could have simply said to Comey, ‘Stop the investigation. I just pardoned Flynn. It’s over.’ My precedent – George Bush. He pardoned Weinberger when he could have easily pointed the finger back at Bush.”

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