Dershowitz vs. Former FBI Special Agent: "Circumstantial Case" For Obstruction Of Justice Charge Against Trump

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ABC's George Stephanopoulos hosts legal expert Alan Dershowitz and Asha Rangappa, a former FBI special agent who is now a lecturer at Yale and analyst with CNN, to debate the merits of the special counsel investigation into the alleged Trump/Russia collusion.

Dershowitz said the only way President Trump could be charged with any crime in the matter is if he sits down for an in-person interview with Mueller's investigators. "You need to commit a crime to be impeached," he said. "If he’s committed previous crimes -- there’s no evidence of that -- that won’t work. But if he commits the crime of perjury, he’s in Clinton-land."

Former FBI special agent Asha Rangappa disagreed, saying that there was already a "circumstantial case" for obstruction of justice against the President. "The obstruction case does center on the president’s intent," she said, "whether he acted corruptly when he fired James Comey. But Mueller does have a lot of circumstantial evidence."





"He has the conversations between James Comey and the president, he has attempts by the White House to approach the CIA and NSA to try to stymie this investigation, he has his own words on the Lester Holt interview," she explained. "So he does have a circumstantial case. I do think Mueller wants to sit down and get from his own words what the president had in his mind."

Dershowitz said no, arguing, "a president cannot be charged with obstruction of justice for merely exercising his power under Article II."

"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 the act and get into his motive or into his intent," he explained.

Even if the president has murdered someone, he said, "it doesn’t matter. The pardon is the pardon. The covering up of the murder may be an independent crime, the pardon cannot be the actus reus of a crime because you cannot have an actus reus of a crime that is a constitutionally protected act."

Full transcript, via ABC:

STEPHANOPOULOS: Alan, let me begin with you. It’s an interesting mixed message there from Rudy Giuliani. Nothing to worry about from Robert Mueller, yet the scorched earth against his team continues.

ALAN DERSHOWITZ, LAW PROFESSOR: Yes, because there is something to worry about, obviously. In the end, if the president sits down with Mueller, he may be walking into a perjury trap. If he is unwilling to sit down, he may be subpoenaed, then probably they’ll be a year or so of litigation. But in the end, probably he’ll have to appear in front of a grand jury. His great vulnerability is a perjury trap, a perjury rap, because as I argue in my book, you need to commit a crime to be impeached.

And if he’s committed previous crimes -- there’s no evidence of that -- that won’t work. But if he commits the crime of perjury, he’s in Clinton-land.

STEPHANOPOULOS: And -- and that gets to the question, Asha. I mean, the perjury is one concern that the president seen (ph) -- sort of looks like they’re not going to do an interview. But you heard Rudy Giuliani say there yesterday that without the president testifying, there is no obstruction case.

ASHA RANGAPPA, SPECIAL LECTURER, YALE UNIVERSITY’S JACKSON INSTITUTE FOR GLOBAL AFFAIRS: That’s not true. The obstruction case does center on the president’s intent, whether he acted corruptly when he fired James Comey. But Mueller does have a lot of circumstantial evidence.

He has the conversations between James Comey and the president, he has attempts by the White House to approach the CIA and NSA to try to stymie this investigation, he has his own words on the Lester Holt interview.

So he does have a circumstantial case. I do think Mueller wants to sit down and get from his own words what the president had in his mind.

STEPHANOPOULOS: Do you think Mueller can write a report, make a case on obstruction without interviewing the president?

DERSHOWITZ: No, I don’t. I think where we respectfully disagree is a president -- and I argue this and I think I prove it conclusively -- a president cannot be charged with obstruction of justice for merely exercising his power under Article II.

He can be, the way Nixon was and Clinton was --

STEPHANOPOULOS: The question is what was going on in his mind --

DERSHOWITZ: 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 the act and get into his motive or into his intent.

That’s -- no president has ever been --

STEPHANOPOULOS: -- is pardoning someone to cover up a murder?

DERSHOWITZ: It doesn’t matter. The pardon is the pardon. The covering up of the murder may be an independent crime, the pardon cannot be the actus reus of a crime because you cannot have an actus reus of a crime that is a constitutionally protected act.

RANGAPPA: Well where I disagree with Professor Dershowitz is that the pardon is an explicit power granted in the constitution, and the firing of James Comey or the firing of one of his principal officers is an implicit power.

So he also has the duty to ensure that the laws be faithfully executed. So in many ways, obstruction of justice is almost implicit in the constitution as well to make sure that investigations don’t get thwarted for nefarious ends.

DERSHOWITZ: -- you can’t start -- you can’t start probing the motives of presidents, all presidents have mixed motives all the time. They’re political, they’re ideological, they’re patriotic, they’re -- can I write a good book after I finish my term?

When you start probing the motives of a president who has acted properly under the constitution, you’re really going down a very, very dangerous, slippery slope.

STEPHANOPOULOS: Let’s talk about Michael Cohen for a second, you also saw Rudy Giuliani saying nothing to fear, no problem as long as Michael Cohen tells the truth. Do you agree with that?

RANGAPPA: I think that they have a lot to fear, and Michael Cohen is probably the closest person in Trump’s inner circle and have been for many years. He was basically the fixer.

So, you know, he’s going to know a lot about what was happening, not just in the campaign, but in other areas such as with the Stormy Daniels case. And to go back to the perjury issue, let’s remember that the civil cases also present a problem for Trump, because he can be deposed in all of those cases --

DERSHOWITZ: Only if he testifies. And he’s not going to do that, he’s not going to make the mistake that Bill Clinton made. He’s learned that lesson, nobody, no decent lawyer is ever going to allow the president to testify in a civil case.

It will be resolved in another way. The problem Cohen poses, it’s not about the past, because you can’t prosecute a president while he’s sitting, and you can’t impeach him for business dealings in the past that Cohen may know about even if there is any crime.

Cohen poses a problem because if the president were to testify, Cohen could contradict him. Then you’d have a current perjury prosecution, which is an impeachable offense.

STEPHANOPOULOS: That’s one concern. Final question though, if the -- there is some charge related to the Stormy Daniels case and the president is implicated in that, that was in service -- that would be the charge of getting him elected.

That comes pretty close to an impeachable offense.

DERSHOWITZ: In my book, I argue that that’s a close question, whether or not you can impeach a president for a crime that helped him get elected. I think the Stormy Daniels case would be a real stretch.


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