“I have been right more than any other pundit,” Alan Dershowitz exclaimed Monday afternoon. “Do you know why? Because I don’t put hope over reality.” We had just finished an interview about President Trump and Robert Mueller, in which Dershowitz continued to argue that Mueller’s investigation was misguided. He called me back to explain why he thought he was seeing the legal issues involved more clearly than other lawyers. “I predicted the deal with Flynn,” he said, offering an example of his predictive capacities. “Not because I am smarter, but because I am more objective.” Dershowitz went on to tell me that if Hillary Clinton had been elected, he would be defending her against scurrilous Republican attacks, and Democrats would be making the same arguments Republicans are making now. When I pointed out that the Trump–Russia story seems objectively more important than the Uranium One “scandal,” and thus that his point was moot, he reminded me that he had defended Bill Clinton during impeachment. Eventually we got off the phone.
Dershowitz, a punchy and controversial personality if there ever was one, has made a reputation for himself over the past several decades thanks to his high-profile legal work and strong support of Israel. More recently, however, he has shocked (some) observers by speaking out against Mueller’s investigation and arguing that the president’s authority to fire an executive branch official—such as James Comey—is unlimited, even if the official is investigating the president’s friends or allies. My conversation with Dershowitz on these legal matters—and his feelings about President Trump, who tweeted about him approvingly on Monday—is below. (Dershowitz called me back a second time under the impression that this Slate piece, written by Molly Olmstead—which summarizes his argument and some of the legal issues—was written by me, and angrily suggested it was a violation of my claim that his words would appear in Q&A form. When he realized his error, he apologized.)
It has been condensed and edited for space and clarity.
Isaac Chotiner: I saw your comment that the president cannot obstruct justice—
Alan Dershowitz: No no no no no. Of course the president can obstruct justice. Nixon obstructed justice. President Clinton was charged with obstructing justice. A president can’t obstruct justice by simply exercising his constitutional authority. That is: A president can’t obstruct justice by pardoning. A president can’t obstruct justice by firing somebody he’s authorized to fire. If a president bribes or takes a bribe, or if a president, as Nixon did, pays hush money, or tells his subordinates to lie to the FBI, or destroys evidence, of course he can be charged with obstruction of justice, but he can’t be charged with obstruction of justice simply by exercising his constitutional authority. That would be a clear violation of the separation of powers, to punish a president for exercising Article II authority.
If the president can basically fire anybody he wants in the government, or he can fire many, many, many people, then it seems like at a certain point then, if those are the people investigating him for one of the things you’re putting forward, your argument seems to dissolve and become a distinction without a difference, no?
No, it’s a big difference, because he can be impeached for that. He can be impeached for firing people. The criteria for impeachment is much looser than the criteria for being charged with a crime. And impeachment doesn’t violate the separation of powers. It’s part of our system of checks and balances.
So, there’s nothing Trump could do in the Russia investigation that would be obstruction in your view.
No. If he bribed somebody, if he told a witness to lie, if he destroyed evidence, if he committed an act not authorized by the Constitution, which constituted obstruction of justice, he could be charged with obstruction of justice. What you can’t do is take an act that’s constitutionally authorized and then psychoanalyze the president and try to figure out what his motives were.
What if he says what his motives were?
It doesn’t matter. It doesn’t matter what his motives are. Let me give you an example. President Bush, the first, pardoned Caspar Weinberger, who was as clear as could be, and the special prosecutor said that publicly, that his intention was to put an end to the investigation of Iran–Contra, which may have pointed directly to President Bush. The special prosecutor said that, but it never occurred to anybody that he had been guilty of obstruction of justice, because the means he used, a pardon, is a constitutionally authorized means.
The point I’m making is that the means are what’s important. It would be a violation of the separation of powers and the Constitution to charge a president with obstruction of justice for simply doing no more than exercising his constitutional authority regardless of what his motive is.
First of all, everybody has mixed motives. Every president has mixed motives, self-aggrandizement, political advantage, partisan benefit, you name it. Let’s take, for example, the very act that caused Flynn to lie. Flynn lied about whether or not he had asked Kislyak to either delay the vote at the Security Council or to vote against the Security Council resolution regarding Israel. President Obama changed years and years of American policy, as he was a lame duck, by telling his ambassador to the U.N. that she had to abstain rather than veto. What if I can prove to you, and I think I can, that President Obama was not motivated by what was good for America or what was good for world peace? He was motivated by anger, frustration, and pique at Benjamin Netanyahu.
This was his attempt to get even with Netanyahu, and he was badly motivated. Let’s assume we find a memo that says that. We’re not going to go after the president for that. Politically we will. We’ll attack him, as I did, but we’re not going to go after him for a crime, for him using personal pique to hurt America. That’s political.
But what’s the underlying crime in the Obama scenario?
Well it would just by, you’d have to ... obviously, it’s not like obstruction of justice, but you could argue that, for example, if a president took a bribe from the Arabs to do that, he’d be guilty of a crime. Here, he’s doing it for crasser reasons. Taking a bribe, he’s doing it for personal gain and benefit. Even if there were a crime, nobody would ever imagine doing that. We don’t psychoanalyze the motives of presidents, or of justices, or senators.
Again, it’s not psychoanalyzing when the president goes on NBC and says he did it because of Russia.
Well, but he’s entitled to do that.
It seems like you’re making two different points here, no?
Yes. I’m making two points. Number one, the president is entitled to tell the Justice Department who to investigate, who to prosecute, and who not to investigate, and who not to prosecute.
The president doesn’t even have to appoint an attorney general. The president essentially can run the Justice Department, if he chooses to do that. It’s a terrible thing, and we shouldn’t allow it. We should have statutes that protect against that. We’re one of the few democratic countries that puts in one office what other countries divide.
OK, so if the FBI is investigating the president and his buddies for whatever, and the president fires the FBI director, that’s not a crime.
No, that’s not a crime. That’s maybe impeachable, but it’s not a crime.
Am I right that you were arguing that because there was no underlying crime in what Flynn did, that he didn’t commit a crime in lying to the FBI?
No. I didn’t say that. Here’s what I said, to be very clear. In order for lying to the FBI to be a crime, the lie has to be material. One of the elements that goes into deciding whether something is material, but just one of the elements, is whether or not what he was lying about was a crime, if the investigation was of a crime. Materiality is a broad and somewhat vague concept. I think it is possible for a person to be convicted of lying to the FBI about a noncrime, but it has to be material. If they ask a person who’s being investigated for tax fraud whether he had an affair with so and so woman and he lied about it, that’s a lie, but it’s not material, so he can’t be prosecuted for it.
I’m looking at 18 U.S. Code § 1001.
I know it well.
It says, “Makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.”
Material as well, yeah. That’s the word. Materially false. The courts have gone both ways in what constitutes materiality, what’s material, but material is an element. That’s clear.
Isn’t there at least some chance that what Flynn was talking about with the Russian ambassador was material?
Material or a crime?
We don’t know if Flynn—
That’s why I didn’t say it wasn’t a crime. I said it might not be a crime. It depends on materiality. All I’m suggesting is that there was an element that wasn’t immediately apparent. It may be there. We’d have to know more about the investigation. We’d have to know more about a range of other issues. All I’m saying is you need materiality, and the fact that it wasn’t a crime is at least one argument that it may not have been material. I think on balance probably it was material.
That raises the question of why did Flynn lie? I think Flynn lied because he didn’t know it wasn’t material. There’s a very interesting article … about how the Obama administration may have used the Logan Act as a way of starting these investigations. Any rational person has to know that the Logan Act is a dead letter. If in fact they used the Logan Act to get search warrants or to do anything, that’s going to have a real problem, because the Logan Act cannot be a basis for anything. It’s a dead letter. It’s as if it’s not on the books.
Meaning when you have a statute that hasn’t been enforced in 215 years, there’s a concept in the law called desuetude. That wipes the statute off the books. You cannot resurrect a dead statute. [Editor’s Note: Federal courts have never declined enforcement of a law because of this concept.]
No one can be charged with violating the Logan Act, you’re saying?
Absolutely not. If anybody could have been charged, the primary guy to have been charged would have been Ronald Reagan. Ronald Reagan as president-elect negotiated with the Iranians to keep American hostages unfreed for weeks so that he could get the credit when he was president for their release. If there was ever a violation of the Logan Act, that was it. If there was ever another violation of the Logan Act, it’s when former President Carter advised Yasser Arafat not to accept the peace offer that Bill Clinton had made to him. If there was ever a violation of the Logan Act, Jesse Jackson would be in jail, Dennis Rodman would be in jail.
How often do you talk to the president?
I’ve talked to the president twice, I think. The last time, months and months and months ago. I never talk to the president. I don’t talk to the president. Or people in the executive, the administration.
No. I talk to people about the Israeli peace process, but I don’t talk to people about ... I don’t talk to the president or his lawyers. I’ve never met his lawyers. I’ve never spoken to his lawyers.
Just because I know a lot of people have been surprised that you seem sympathetic to the administration.
I’m not sympathetic to the administration. I’m unsympathetic to the administration.
I’m against this administration. I don’t like what they’re doing. I’m sympathetic to the law. I would be doing exactly the same thing if Hillary Clinton were president and they were shouting, “Lock her up,” which they would be doing. I’m very critical of President Trump trying to start an investigation of Hillary Clinton. I have said publicly and wrote a column saying that what President Trump did in revealing to the Russians the spies that we have in the Middle East regarding the use of computers on airplanes was one of the most serious breaches that a president has ever committed. I am anything but a supporter of this administration politically, not at all.
But your feelings are also negative about the Mueller investigation?
I think the mode of the investigation was misguided. We should have had a nonpartisan commission like 9/11 set up to examine in a nonpartisan way the Russian influence on American elections. It should have been open—
There’s a reason we didn’t have that.
Congress would never have gone for it.
They should have gone for it. I’m not here to tell you what would happen. I’m here to tell you what should have happened. That would have been the approach. Appointing a special counsel was a mistake, because it operates behind closed doors, and the result’s going to be either indictments or not indictments, and there wasn’t sufficient basis when it was done to appoint a special counsel. I’m opposed to that. My opposition is institutional, not personal.