This is a novel legal argument without historical precedent; the consequence of adopting this new rule of law would be the reinstallation of the monarchy. To say law enforcement can't consider the mental state with which a POTUS acts is to say he can't EVER be accused of a crime.
2/ If Dershowitz refers only to presidential acts enumerated in the Constitution, he CAN'T include firing DOJ personnel in that. And as for the (enumerated) pardon power, the so-called "Take Care" clause of the Constitution EXPLICITLY forbids acts engaged in for illegal purposes.
3/ When I was at Harvard Law School, I or any of my peers would have been given a "C" (essentially, the HLS equivalent of an "F") for making the argument a Harvard Law School professor (emeritus) is making now. THAT, @AlanDersh, is why people assume you have some ulterior motive.
4/ Every criminal statute has an "actus reus" (the act itself) and a "mens rea" (the state of mind one must be in while committing an act for it to be criminal, which changes depending upon the act and the statute). NO AMERICAN is "beyond" a mens rea analysis by law enforcement.
5/ Because presidents can only be impeached for "high crimes and misdemeanors," @AlanDersh is actually trying to *invalidate* the Constitution's Impeachment Clause by making it impossible for a president to ever be accused of a crime. I can't emphasize how insane his analysis is.
6/ More importantly, the Constitution's Take Care Clause requires that a POTUS "faithfully execute" the laws of the nation, which CANNOT and WILL NOT be read by the Supreme Court as allowing a POTUS to commit crimes himself, let alone *create new crimes* while pardoning old ones.
7/ I know—as I learned it directly from @AlanDersh at Harvard Law—that the Supreme Court won't interpret the Constitution to create a nonsensical contradiction between clauses if it has *any* alternative. Alan's analyses create nonsenses that would *tear the Constitution apart*.
8/ But Alan's malfeasance goes beyond bad constitutional analysis. He sees—as do we all—that we're in a time when legal and political norms are dissolving in a way that is producing violence, confusion, fear, suspicion, and administrative chaos. He is deliberately adding to that.
9/ There has never been a worse time to be testing out novel legal analyses for the sake of writing a book and appearing on Fox News regularly. Now is a time when all attorneys—me, Dershowitz, and anyone else—should be hewing closely to how our legal system has historically run.
10/ The legal analyses on this feed have—from day one—*militantly* insisted on the same rule of law being applied to every American, and that includes Donald Trump, Hillary Clinton, witnesses and targets in the Russia investigation, you, me, and the man who lives down the street,
11/ My question for @ABC and @GStephanopoulos—both of whom I happen to like very much—is whether Dershowitz's legal analyses were vetted beforehand by any lawyers at the network to determine that they're colorable (as we say) under the law rather than eccentrically irresponsible.
12/ @ABC and @GStephanopoulos should of course feature colorable legal disputes on-air—points on which the legal community's divided, even if it's 80/20 one way—but outrageous legal philosophies never before argued let alone equally applied to the two parties have no place on TV.
13/ Just so, Rudy Giuliani's positively *astounding* comment today that prosecutors must feel neutrally toward every suspect they investigate—when in fact that *never* happens, as suspicion of criminal activity causes prosecutors upset—should be challenged in the strongest terms.
14/ Giuliani's interviews are all—to a one—norm-perverse, meaning that they deliberately seek to change (rather than hew to) the legal norms of our criminal justice system to favor the most powerful man in America. What Giuliani is doing *must* be pointed out in every interview.
15/ Put plainly, *nothing* Giuliani says about how the criminal justice system works is how it *actually* works, and no one's calling him on it consistently. As his aim is to create *special rules for the most powerful man in America*, his discourse—like Alan's—is dangerous. /end
