At Fox News, Alan Dershowitz (Harvard): Comey's statement fails to deliver the smoking gun Democrats craved.
Irrespective of what the Comey statement said, the core constitutional argument is this:
Throughout American history — from Adams to Jefferson to Lincoln to Roosevelt to Kennedy to Obama — presidents have directed (not merely requested) the Justice Department to investigate, prosecute (or not prosecute) specific individuals or categories of individuals.
It is only recently that the tradition of an independent Justice Department and FBI has emerged. But traditions, even salutary ones, cannot form the basis of a criminal charge.
It would be far better if our constitution provided for prosecutors who were not part of the executive branch which is under the direction of the president.
In Great Britain, Israel and other democracies that respect the rule of law, the Director of Public Prosecution or the attorney general are law enforcement officials who, by law, are independent of the Prime Minister.
But our constitution makes the attorney general both the chief prosecutor and the chief political adviser to the present on matters of justice and law enforcement.
The president can, as a matter of constitutional law, direct the attorney general, and his subordinate, the Director of the FBI, tell them what to do, whom to prosecute and whom not to prosecute. Indeed, the president has the constitutional authority to stop the investigation of any person by simply pardoning that person.
I think that's basically right as an original matter: the President has prosecutorial discretion as part of his executive power, and the FBI/Justice Department, being part of the executive branch, is subject to his direction. Also, arguably that's a bad system, as Professor Dershowitz says; it's not the system here in California or most (all?) other states, where the attorney general is elected independently. But it is the Constitution's system.
There may be two complicating questions, although I don't think they are implicated in the current debate:
(1) Does the President have power to pardon himself? If not, and if (as Professor Dershowitz implies) one thinks the prosecutorial discretion power follows a fortiori from the pardon power, would that mean the analysis is different if the President himself were the target?
(2) Does Congress have power to eliminate prosecutorial discretion by statute,especially as to a class of people such as the President or the President's close associates?
I think one more point is important and missing in Professor Dershowitz's analysis. The Constitution's system is that the check on the President comes not from an independent prosecutor but from Congress' impeachment power. It's not illegal or unconstitutional for the President to cut off an investigation by the executive branch. But that does not mean the President is unchecked. If Congress thinks that a weighty misdeed has been committed, it can act. And if Congress concludes that nothing of that magnitude has occurred, that should be an end to the matter. The Constitution, for better or worse, commits the question not to an independent prosecutor but to Congress.
Posted at 6:09 AM