There might be a smidgen of tension in the Harvard Law School faculty lounge.
Two of the school’s most renowned senior professors — Alan Dershowitz and Laurence Tribe — have taken diametrically opposed positions on whether the dismissal of James Comey as FBI director establishes the crime of obstruction of justice perpetrated by none other than the President of the United States, Donald J. Trump.
This is an important question, and these are important legal minds, so attention should be paid.
The larger context here, of course, is the FBI’s ongoing investigation of Russian interference in the presidential election and possible collusion between Russian operatives and the Trump campaign.
Professor Tribe, in a televised interview, emphasized several aspects of the swirling controversy: first, unnamed “associates” of Comey reportedly have said that President Trump had asked then-director Comey if he could count on his “loyalty,” and Comey had not given an affirmative answer.
Secondly, in an interview on NBC, Trump himself said that he had directly asked Comey if he (Trump) was under investigation, and had been told he was not. In that same interview, Trump also said the Russian investigation was a factor in his decision to fire the director.
In that larger context, Tribe believes that asking for Comey’s “loyalty” is the equivalent of asking for a promise that Trump will not become a target of the investigation. That, according to Tribe, is an “impermissible” request, which “on its face” is an obstruction of justice.
Indeed, Tribe goes so far as to say that the entire sequence of events is “a series of high crimes and misdemeanors” that would justify articles of impeachment.
Just to be clear: everyone agrees that a president cannot be tried for a crime while in office, but a president may be removed from office if a majority of the House of Representatives impeaches him or her for “high crimes and misdemeanors” and two-thirds of the Senate concurs.
What constitutes “high crimes or misdemeanors” is entirely within the judgment of each member of Congress.
Professor Dershowitz has an entirely different view on obstruction of justice. He thinks that the idea that Trump is guilty of obstructing justice is “a dangerous argument ... being put forward by some Democratic ideologues[.]” (I told you the faculty lounge at Harvard Law was tense, didn’t I?)
Dershowitz rejects the obstruction of justice argument because it is undisputed that the president has the legal authority to fire a director of the FBI. Comey himself made exactly that point in his farewell letter to the FBI staff, where he wrote that, “I have long believed that a President can fire an FBI director for any reason, or for no reason at all.”
In light of the president’s undisputed authority to fire the FBI director, Dershowitz makes this argument: “Even assuming that Trump was improperly motivated in firing Comey, motive alone should never constitute a crime. ... Otherwise the crime would place the defendant's thoughts on trial, rather than his actions.”
Dershowitz is, of course, a prominent criminal defense attorney as well as a law professor (his clients have included O.J. Simpson and Claus von Bulow), so it’s not entirely unexpected that he would be arguing for a narrower interpretation of criminal law.
So, Tribe says Trump has obstructed justice, and Dershowitz says he has not. Which one is correct? At this moment in time, we can confidently say: neither.
Dershowitz’s analysis is flawed: in criminal cases, “the defendant’s thoughts” are often precisely what is at issue.
Suppose I have a license to own a firearm, and I aim my pistol and shoot a man dead. Am I guilty of a crime? If I fired because his dog was digging up my lawn then, yes, I’m guilty of murder.
But if I fired because I had just seen him wantonly shoot several other people and he had then turned and pointed his weapon at me, I’m not guilty of any crime at all — I shot him in justifiable self-defense.
There is no dispute about my actions: I deliberately shot and killed someone. What is crucial, however, is my reason for shooting. Similarly, Trump’s reason for firing Director Comey could be crucial in determining whether there was an obstruction of justice.
But Tribe strays much too far in the other direction. In a criminal trial, it would have to be proven beyond a reasonable doubt that Trump dismissed Comey with the intent of hindering or obstructing an investigation.
Unnamed sources say Trump asked for Comey’s “loyalty”, but Trump denies that. So, at this point we do not even know whether that request was ever made.
Secondly, requesting Comey’s “loyalty” is simply not the same thing as asking him to promise not to investigate Trump.
Trump is apparently a person who asks, and even demands, that many subordinates be “loyal” to him.
But that is not, contrary to Tribe, “on its face” a request that they violate any law or impede any investigation. On its face, it’s merely a request for loyalty.
And, if Trump took the Russia investigation into account while considering whether to fire Comey, that too would not “on its face” amount to an obstruction. It’s entirely possible Trump decided that a different FBI director might be better able to conduct that investigation. Certainly, Comey’s handling of the Clinton email investigation drew heavy criticism from both parties.
Has President Trump perpetrated an obstruction of justice? I don’t know, but neither does Alan Dershowitz nor Laurence Tribe.
So, I’m in good company.
David E. Weisberg is an attorney, and a member of the New York state bar. His writing has appeared in the Social Science Research Network and in The Times of Israel.
The views expressed by contributors are their own and are not the views of The Hill.