Crimes Were Committed

Alan Dershowitz is far more impressed with his own brilliance than I am. He has lately been hitting all of the right wing disinformation outlets in defense of the indefensible acts of Donald Trump et al. Last Friday Ari Melber gave Professor Dershowitz a forum that is very familiar to any law school Professor. It was a moot court setting, but the arguments would begin and end with opening statements that could be no longer than four minutes. This greatly favored Mr. Dershowitz because as the defense attorney he did not have the burden of proof. But lets look at what Mr. Dershowitz argued about Russia's interference in our election and the collusion of Trump and his campaign because Mr. Dershowitz'  argument is both instructive and potentially destructive!

Mr. Dershowitz did not try to deny that Trump colluded with the Russians, instead he admitted it. His stated reason for admitting it is that a denial of the collusion would not be credible! On that point he is obviously right. The public record alone makes Trump's denials about the hacking and his collusion with the Russians patently absurd. So how do you defend a guilty client. If you are Alan Dershowitz and your client is the President you argue that there is no law that protects “we the people” from the President's dangerous and unethical acts even when those acts involve colluding with an adversarial foreign power!

One of the things Mr. Dershowitz is ignoring in making this argument is the Emoluments Clause of the Constitution, which states in part that “...no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” There is now pending a civil lawsuit filed against Donald Trump by Citizens for Responsibility and Ethics in Washington. This suit alleges among other things that all of the conflicts of interest created by representatives of foreign governments patronizing Trump's hotels, golf courses, and other businesses are in violation of the Emoluments Cause.

Whether this suit will succeed or not I cannot say, but the fear our founding fathers expressed about the corrupting influence of foreign powers makes it very clear that the Emoluments Clause is to be interpreted broadly. In fact I agree with the attorneys who argue that colluding with Russian hackers and trolls to use the materials stolen through hacking is a violation of the Emoluments Clause. The hackers stole emails because those emails and the information contained therein have value. Indeed, candidates spend tens of thousands of dollars for opposition research. What was the price Trump paid for the benefits he reaped from the use of that information? I fear that it may be higher than any of us suspect. And yes, I believe that conspiracy laws and laws about knowingly receiving stolen property may also apply to the case at hand regardless of what Mr. Dershowitz contends.  Furthermore, Mr. Dershowitz' likening of the Trump campaign's use of the stolen information to a news paper publishing something like the Pentagon papers is utter nonsense; the Emoluments Clause applies to office holders not to the news media!

Not argued at the Ari Melber's moot court are the obstruction of justice allegations, and it is the obstruction of justice and abuse of power allegations that may prove to be most dangerous to Trump. The purpose of any legitimate investigation is to uncover the facts. Whether those facts indicate that a crime has been committed is for a prosecutor and then a court to determine. It is illegal to interfere with or obstruct an investigation conducted by a government agency or prosecutor regardless of whether or not the investigation would have uncovered criminal or illegal acts. Therefore, even if you accept Dershowitz' contention that Trump did nothing illegal in regard to the hacking and Russia's interference with our election, Trump's firing of FBI Director Comey and other acts he has committed in an effort to interfere with the investigations of him and Russia were and are criminal acts.

I might add here that it is not for Mr. Dershowitz to tell a jury what the law is, that is done by a judge who reads the jury instructions to the jury. So a moot court as constituted on the show may not have been the best forum for an argument that should be made in a summary judgment motion or some other motion to dismiss.