Alan Dershowitz: Barr is right, Mueller is wrong

Despite efforts by Democratic senators and some in the media to cast the dispute between Attorney General William Barr and special counsel Robert Mueller as political, or even as a personal argument between close friends, it actually is much more about the substance of the law than it is about whether Barr accurately summarized the Mueller report.

Barr and Mueller fundamentally disagree about the law governing obstruction of justice by a president.

Even before Barr was nominated, he took the position, in a letter he wrote to the Justice Department, that for a president to obstruct justice he must go beyond committing a presidential act authorized under Article II of the Constitution.

{mosads}Applied specifically to the case of President Trump, Barr has argued that President Trump’s firing of FBI Director James Comey could never — regardless of the motive — constitute the act component of the crime of obstruction of justice, because a president has the constitutional authority to fire anyone in the executive branch.

Muller apparently disagrees with that legal and constitutional conclusion. In his report, he lists the firing of Comey as one among several acts that could form the basis of an obstruction of justice charge. The other acts that he lists also generally fall within the authority of a president.

Whose view of the law is correct?  The answer should look to precedent. The two precedents most directly on point in resolving this important legal and constitutional question are the cases of Presidents Richard Nixon and George H.W. Bush.

Nixon clearly exceeded his presidential authority when he ordered the payment of hush money to potential federal witnesses, when he destroyed evidence and when he told his subordinates to lie to the FBI. These are all independent crimes which are beyond the authority of anyone, even a president. Together, they constitute obstruction of justice, and Nixon was almost certainly guilty of that crime.

Contrast the Nixon case with the act committed by President Bush on the eve of the most significant criminal trial involving the Iran-Contra scandal. President Bush exercised his constitutional authority to pardon former Defense Secretary Caspar Weinberger and a handful of other defendants. His purpose was clear: to end the Iran-Contra investigation and to prevent prosecutors from pressuring Weinberger and the others to testify against him.

Had similar actions been committed by anyone but a president, they clearly would have constituted an obstruction of justice. The special prosecutor, Lawrence Walsh, described it in terms that left little doubt about Bush’s unlawful purpose. Walsh condemned their pardons as part of the “cover-up” and “deception and obstruction.” But because the act of pardoning is authorized by the Constitution, no president can be charged with obstruction by acting pursuant to his constitutional authority.

The same is true of the firing of James Comey by President Trump. As Comey himself has acknowledged, President Trump acted within his constitutional authority when he fired Comey, and such a constitutionally authorized act cannot form the basis for a criminal charge of obstruction, regardless of why the president may have done it.

{mossecondads}It is shocking that the Mueller report never discusses the difference between the Nixon and Bush cases. That difference is central to a proper application of the obstruction of justice statute to presidential decisions. It draws a clear line between presidential acts that are within the authority of Article II, such as pardoning and firing, and presidential acts that fall outside Article II authority, such as bribing witnesses, suborning perjury or destroying evidence.

Both Barr and Mueller were aware of the Bush precedent, since both served in the Bush Justice Department. Perhaps they did not want to say anything negative about their former boss, especially so shortly after his death.

There are no Supreme Court decisions or even Justice Department positions that directly resolve the issue of whether “the President’s exercise of his constitutional authority to terminate an FBI director and to close investigations” can constitutionally constitute an obstruction of justice. The Mueller report also acknowledges the principle that “general statutes must be read as not applying to the President if they do not expressly apply where application would arguably limit the President’s constitutional role.” And it correctly concludes that “the obstruction statutes do not disqualify the President from acting in a case simply because he has a personal interest in it or because his own conduct may be at issue.”

Those three principles should end the matter. In the absence of a contrary precedent, the general obstruction of justice statute should not be deemed applicable to the commission of an act by a president authorized by the Constitution, even if it was self-serving. This conclusion applies not only to the firing of Comey, but to all actions taken by President Trump pursuant to constitutional authority under Article II.

So, the controversy between these two experienced lawyers goes well beyond whether Barr inaccurately described the Mueller report. That is a moot issue, since all Americans can decide that for themselves now that both the report and the letter have been made public.

The real controversy is whether President Trump’s actions, that were authorized by the Constitution, could constitute the crime of obstruction of justice. Barr is right in concluding it couldn’t. Mueller is wrong in concluding it could.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. His new book is “The Case Against the Democratic House Impeaching Trump.” You can follow him on Twitter @AlanDersh.