OPINION: Trump wins legally but loses politically in Comey hearing

The  “super bowl” of Congressional hearings, starring quarterback James Comey, ended with a number of fumbles, a few blocked kicks, no touchdowns, and a small number of first downs by either side. There will be several overtime periods, but they will be played out in the months to come. The likely outcome is a legal victory for Trump and a political victory for the Democrats. 

As I had previously predicted, there were few surprises. Comey’s carefully scripted statement stuck close to what he had already written in his contemporaneous memoranda. Few surprises were revealed in his written statement, published the night before the hearings. So the drama centered around Comey’s examination by Senators. 

{mosads}Both the Democrats and Republicans have grievances against Comey: the Democrats think he overstepped his bounds by talking too much about this investigation of Hillary Clinton, the Republicans believe that he overstepped his bounds by investigating the Trump campaign, and by his selective disclosures to the media. But at the hearing itself, both Democratic and Republican Senators were respectful of Comey.

The bottom line is that no evidence of any criminal conduct by President Trump emerged at the hearing. That is not surprising, because Comey has acknowledged that the President acted lawfully in firing him, and that historical precedent — at least until recently — supported the power of the president to direct the Justice Department and FBI with regard to ongoing investigations and prosecutions. 

Comey also acknowledged that Trump was right and the media was wrong, that Comey had told the President on several occasions that he was not under investigation.

The crucial conversation occurred in the Oval Office on Feb. 14 between the President and the then director. According to Comey’s contemporaneous memo, the president expressed his opinion that (fired NSA Director) General Michael Flynn “is a good guy.” Comey replied: “He is a good guy.”

The President said the following: “I hope you can see your way clear to letting this thing go.”

Comey understood that to be a reference only to the Flynn investigation and not “the broader investigation into Russia or possible links to the campaign.”

Comey had already told the President that “we were not investigating him personally.”

Comey understood “the President to be requesting that we drop any investigation of Flynn in connection with false statements about his conversations with the Russian ambassador in December.”

Comey did not say he would “let this go,” and indeed he did not grant the president’s request to do so. Nor did Comey report this conversation to the attorney general or any other prosecutor. He was troubled by what he regarded as a breach of recent traditions of FBI independence from the White House, though he recognized that “throughout history, some presidents have decided that because ‘problems’ come from the Department of Justice, they should try to hold the Department close.”

That is an understatement.

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.

But our Constitution makes the Attorney General both the chief prosecutor and the chief political adviser to the president on matters of justice and law enforcement.

As Comey acknowledged in his testimony, and as I have been arguing for weeks, the president can, as a matter of constitutional law, direct the Attorney General and the Director of the FBI, 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.

Comey’s testimony should put an end to the media obsession with accusing President Trump of obstruction of justice.  A president cannot, as a matter of constitutional law, obstruct justice by merely exercising his constitutional prerogative to stop an investigation or to fire the Director of the F.B.I.  The President could obstruct justice, as Nixon may have done, by telling his staff to lie to the FBI or by having his staff pay hush money to bribe witnesses not to testify.  But no such crimes are alleged against President Trump.

The hearing Thursday made it clear that the focus should not be on alleged crimes by President Trump, but rather on the extraordinary crimes committed by the Russian government and its functionaries in hacking the Democratic National Committee and in seeking to influence the presidential election.

The Democratic media pundits have been distorting the discussion by misdirecting public attention and false accusations of crimes against Trump. The Comey hearing should make it clear to everybody that the focus should be on Russia and on whether anyone in the Trump campaign collaborated with Russians in an effort to affect the election. I am aware of no such evidence, but this issue is so important that the investigation should continue until all the facts are known.

Alan M. Dershowitz is professor emeritus at the Harvard Law School and author of “Taking the Stand: My Life in the Law” and “Electile Dysfunction: A Guide for Unaroused Voters.” Follow him on Twitter: @AlanDersh and Facebook: @AlanMDershowitz.