@dandrezner 1. Oy. First things first: There's no good reason anyone should be listening to Dershowitz on this. It's not that he isn't an "authority" (he's not--but if he had done the work, that wouldn't matter); it's that he hasn't done any serious analysis--he's trading on celebrity.
@dandrezner 2. OK, on to the "merits." He's conflating a bunch of different things. Mostly, the merits and the remedy. Merits: If Trump exercised one of his Art. II powers--pardon/removal/diplomacy/etc.--for purposes of trying to stymie an investigation because ...
@dandrezner 3. ...it's getting too close to him or his family/associates--for personal gain--he's violating his constitutional duty to take care the laws are faithfully executed. As Dave Pozen and I explain here, exercising such powers for corrupt reasons is unlawful.
justsecurity.org/41024/why-trum…
justsecurity.org/41024/why-trum…
@dandrezner 4. It *might* also violate a criminal law (e.g., obstruction statutes), depending on whether the elements are met--one of which is that he has to be acting for a corrupt, not legit, purpose. But the crim statutes are the least of it--it's unconstitutional.
@dandrezner 5. Now, as to "remedies." It is *probably* the case, at least as a practical matter, that the action itself--a pardon; a removal; etc.--cannot be challenged and undone. Actually a harder question than many assume, but of no practical consequence, since it's unlikely to arise.
@dandrezner 6. Not inconceivable, though: If, e.g., he purports to remove Mueller even though he lacks authority to do so, it's *possible* Mueller could refuse to leave (Stanton did, when Johnson told him he was fired), or challenge it in court. Again, though, this is very speculative.
@dandrezner 7. OK, but could Trump himself be indicted and tried for a crime based (at least in part) on exercise of constitutional powers, such as his removal of Comey? Yes, in *theory.* Dersh says no because of some idea that no one can inquire into his motive, and conviction requires ...
@dandrezner 8. ... proof of bad motive. It might be very *difficult* to prove illicit motive of the POTUS--and the unseemliness of the inquiry (and unwelcome precedent) is *one* reason why prosecutors might choose not to indict. But the inquiry isn't theoretically foreclosed. That said, ...
@dandrezner 9. ... there are several reasons why it's *highly* unlikely a grand jury will indict Trump, or any other POTUS during his term. One is that DOJ's official view is that it can't happen until after he leaves office. I think that's wrong, but the reasons for that DOJ view ...
@dandrezner 10. ... are the reasons no AG (or acting AG such as RR) will indict the POTUS during his Term except in very unusual circumstances (e.g., there's an egregious crime that shouldn't go unpunished and the POTUS refuses to waive the statute of limitations until leaving office).
@dandrezner 11. Could a state (not federal) prosecutor indict the sitting POTUS? I doubt the SCOTUS would allow the *trial* of POTUS during office--but it's an open question whether a state official could *indict* during office.
@dandrezner 12. Could the House impeach and the Senate convict for "wrongful" (and unconstitutional) exercise of Art. II powers? Absolutely. And they could inquire into Trump's motives--and make assessments of them--in the process. But that's not happening, either, for various reasons.
@dandrezner 13. The important *remedial* focus, then, is not criminal trial, or impeachment, but the ballot box. More importantly, Mueller's principal mandate is not criminal indictments but a counterintel investigation to determine the Russian threat and (among other things) whether ...
@dandrezner 14 ... Trump is in any way compromised so that he cannot or will not deal with it (as it appears he is failing to do). That is to say, Mueller's most important function is *prospective* warning and revelation, not backward-looking prosecution. Which presumably ...
@dandrezner 15. ... would be the subject of a report to the Intel Community and Congress (and possibly the public, classification permitting). And as to *that* function, it doesn't really matter whether Trump has acted unlawfully--if he's compromised w/r/t Putin, that's much worse, ...
@dandrezner 16. ... and more troubling. Now, what about an interview w/Trump? Let's say, e.g., Mueller wants to interview him for purposes of the counterintel investigation, or to gather evidence respecting crimes committed by *others.* If Trump resists, it *might* result ...
@dandrezner 17. ... in a grand jury subpoena (and then litigation about its legality), but probably not: These things are typically resolved through "accommodation." One thing seems certain, however: Whether Mueller already has evidence of Trump criminality is neither here nor there ...
@dandrezner 18. ... for purposes of the terms of the interview and the possible subpoena.
To close: *I* don't think there's much serious debate in the legal community about these points (although as I've noted, some of them (e.g., indictment of POTUS during term) are unresolved).
To close: *I* don't think there's much serious debate in the legal community about these points (although as I've noted, some of them (e.g., indictment of POTUS during term) are unresolved).
@dandrezner 19. There is, however, a hell of a lot of *confusion,* because so many people conflate all these distinct questions, and thus talk past one another. Hope that's helpful. Let me know if I can clarify any of it further.
