Dershowitz: ‘You cannot question a president’s motives when the president acts’

Attorney Alan Dershowitz asserted on Sunday that a president’s motives cannot be used to charge him or her with a crime while in office.

Dershowitz, who is a frequent defender of President Trump in the Russia investigation and an opinion contributor to The Hill, argued on ABC’s “This Week” that a president can’t be charged with obstruction of justice for exercising his powers laid out in the Constitution.

“You cannot question a president’s motives when the president acts,” Dershowitz said. 

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“If a president pardons, that’s it. If a president fires, that’s it. You can’t go beyond the act and get into his motive or get into his intent,” he continued.

Host George Stephanopoulos questioned if that would apply to a president covering up a murder.

“It doesn’t matter,” Dershowitz responded. “The pardon is the pardon. The covering up of the murder may be an independent crime.”

Alan Dershowitz to @GStephanopoulos: “You cannot question a president’s motives when the president acts. If a president pardons, that’s it. If a president fires, that’s it. You can’t go beyond an act and get into his motive or into his intent.” #ThisWeek pic.twitter.com/X7ecf3DO0E

— This Week (@ThisWeekABC) July 8, 2018

A number of legal experts quickly questioned Dershowitz’s claim on social media. 

Asha Rangappa, a former FBI special agent and ABC analyst, refuted Dershowitz’s claim immediately. She argued that the Constitution implies that the president cannot obstruct justice because they swear to uphold the laws faithfully. 

So here is my rebuttal to Dershowitz’s false comparison of firing the FBI director to the pardon power. The affirmative duty to take care that the laws be faithfully executed essentially acts as an implicit prohibition on obstructing justice by firing ppl leading investigations. pic.twitter.com/lEBZ1Kxfww

— Asha Rangappa (@AshaRangappa_) July 8, 2018

Laurence Tribe, a Harvard law professor, called Dershowitz’s claim “ludicrous,” and argued it has “no basis in the Constitution’s text.” 

This is ludicrous. The Dershowitz claim has no basis in the Constitution’s text, structure, history, or purposes. Alan’s emphatic certitude is probably sincere but is groundless and deeply misleading. My book on impeachment with @JoshuaMatz8 shows why he’s wrong. https://t.co/QR5PZa300m

— Laurence Tribe (@tribelaw) July 8, 2018

Josh Chafetz, a law professor at Cornell University, acknowledged a pardon can’t be challenged because of motive, but disputed the thinking that motive can’t factor into obstruction of justice. 

“Obstruction *often* involves things that the obstructor otherwise has a legal right to do,” he tweeted.

“I can shred my financial records, but if I do it with the intent to obstruct an investigation, then I have committed obstruction of justice,” he added.

I can shred my financial records, but if I do it with the intent to obstruct an investigation, then I have committed obstruction of justice. (For one example of this, see 18 U.S.C. § 1519.)

— Josh Chafetz (@joshchafetz) July 8, 2018

Dershowitz caused a stir last week when he lamented that his friends in Martha’s Vineyard have ostracized him for his appearances on television defending Trump. However, he elaborated to The New York Times that he has tried embracing the isolation.

“I’m enjoying this,” Dershowitz said. “It’s a red badge of courage.”