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Dershowitz: Get Out of the Weeds, No Obstruction of Justice With Comey

One of the great legal minds today is liberal Alan Dershowitz. Talking with Anderson Cooper on CNN following the release of James Comey's seven-page statement, Dershowitz had this to say:

Well, first of all, let's look at the big constitutional picture. The president could have told Comey, "You are commanded, directed to drop the prosecution against Flynn." The president has the right to do that. Comey acknowledges that. He says in the statement that historically, historically presidents have done that to the Justice Department.

The past few years we've had a tradition of separation, but that tradition doesn't create crime. And remember also what the president could have done. He could have said to Comey, "Stop this investigation. I am now pardoning Flynn."

"Two important points there, in what Dershowitz said. And one that's key in saying there was a tradition of separation between the Executive Branch and the Department of Justice, even though the head of the FBI and the attorney general all serve at the behest of the president. But he said, tradition does not make a crime," Mike Opelka said, filling in for Glenn on radio.

Dershowitz continued.

That's what President Bush did. In the beginning of the investigation of Caspar Weinberger, which could have led back to the White House, to the first President Bush. President Bush on the eve of the trial pardoned Caspar Weinberger, pardoned six people, and special counsel Walsh said this is outrageous. He's stopping the investigation. Nobody talked about obstruction of justice. You cannot have obstruction of justice, when the president exercises his constitutional authority to pardon, his constitutional authority to fire the director of the FBI or his constitutional authority to tell the director of the FBI who to prosecute, who not to prosecute. So let's get out of the weeds, and let's look at the big constitutional picture.

"So there it is. From one of the most respected legal minds in the country, who also happens to be a liberal. You cannot have obstruction of justice here," Opelka said.

Enjoy the complimentary clip or read the transcript for details.

MIKE: We're watching Comeyfefe 2017. Comeyfefe 2017 has the nation's attention. Or at least everybody who can avoid going to work today and sitting at home and watching Jim Comey tell us either nothing or that he'll tell the senators in private, or he's rehashing things we already knew. So gigantic waste of time for this giant nothing burger, except there was just a moment that was just captured, as Dianne Feinstein, the senator from California was talking to Jim Comey and mentioned the tapes, the tapes that Donald Trump alluded to, when he tweeted after Comey talked about his memo, when Donald Trump tweed that Jim Comey better hope -- better hope that I don't have tapes before he starts leaking things.

And this was the exchange.

VOICE: Why didn't you stop and say, "Mr. President, this is wrong. I cannot discuss this with you?"

JAMES: That's a great question. Maybe if I were stronger, I would have. I was so stunned by the conversation, that I just took it in. And the only thing I can think to say -- because I was playing in my mind -- because I could remember every word he said -- I was playing in my mind, "What should my response be?" And that's why I very carefully chose the words -- and, look, I've seen the tweet about tapes. Lordy, I hope there are tapes.

I -- I remember saying, "I agree. He's a good guy." As a way of saying, "I'm not agreeing with what you just asked me to do." Again, maybe other people would be stronger in that circumstance, but that was -- that's how I conducted myself. I hope I'll never have another opportunity. Maybe if I did it again, I'd do it better.

MIKE: And how long before we have T-shirts that say this...

JAMES: I've seen the tweet about tapes. Lordy, I hope there are tapes.

MIKE: Lordy, I hope there are tapes.

This is getting more bizarre by the moment. I can't even imagine this. And I also wonder what the hell the rest of the world is thinking. Now, one of the great legal minds in this world is a guy named Alan Dershowitz.

Alan Dershowitz is a liberal. Alan Dershowitz is not a guy that the G.O.P. would normally call in to say, hey, would you back us up on this?

And Alan Dershowitz was talking with Anderson Cooper last night on CNN. And they were discussing the seven-page statement that Comey put out, that was his opening statement today. So the whole world saw the opening statement already.

And in there, we have said there is no evidence of obstruction of justice. While the Democrats are all saying, "This is all obstruction of justice." At least the only guy who at CNN will say that is Jeffrey Toobin, and then every Democrat quotes Toobin saying, "Toobin says it. It must be obstruction." But Alan Dershowitz gave us some great clarity on this.

ANDERSON: Professor Dershowitz, you say this is not obstruction of justice by the president and that it actually strengthens his position against Director Comey. How so?

ALAN: Well, first of all, let's look at the big constitutional picture. The president could have told Comey, "You are commanded, directed to drop the prosecution against Flynn." The president has the right to do that. Comey acknowledges that. He says in the statement that historically -- historically presidents have done that to the Justice Department.

MIKE: So, first of all, let's remember this. Historically, presidents have been able to tell the Justice Department and actually have told the Justice Department, "Stop this investigation. It's within the power of the president. It's the president's right. It's part of his executive powers." Dershowitz continues.

ALAN: The past few years we've had a tradition of separation, but that tradition doesn't create crime. And remember also what the president could have done. He could have said to Comey, "Stop this investigation. I am now pardoning Flynn."

MIKE: Two important points there, in what Dershowitz said. And one that's key in saying there was a tradition of separation between the executive branch and the Department of Justice, even though the head of the FBI and the attorney general all serve at the behest of the president. But he said, tradition does not make a crime. Tradition does not make a crime. A really key point there. And he did say that the president has the right to say I'm pardoning Flynn. Therefore, there's no need for an investigation. End it here. Donald Trump didn't do that. But he had the power.

Comey -- or, Dershowitz continues.

ALAN: That's what President Bush did. In the beginning of the investigation of Caspar Weinberger, which could have led back to the White House, to the first President Bush. President Bush on the eve of the trial pardoned Caspar Weinberger, pardoned six people. And special counsel Walsh said this is outrageous. He's stopping the investigation.

Nobody talked about obstruction of justice. You cannot have obstruction of justice, when the president exercises his constitutional authority to pardon, his constitutional authority to fire the director of the FBI, or his constitutional authority to tell the director of the FBI who to prosecute, who not to prosecute. So let's get out of the weeds, and let's look at the big --

MIKE: So there it is. From one of the most respected legal minds in the country, who also happens to be a liberal. You cannot have obstruction of justice here. And what happened in no way was -- was anywhere near obstruction of justice. So how will Chuck Schumer -- how will Nancy Pelosi -- how will Maxine Waters -- how will all the hand-wringing Democrats deal with this? Well, you can bet they're going to keep hammering. They're going to keep hammering until they get something else, something else that will slow down the process.

Comey -- or, Dershowitz continues.

ALAN: That's what President Bush did. In the beginning of the investigation of Caspar Weinberger, which could have led back to the White House, to the first President Bush. President Bush on the eve of the trial pardoned Caspar Weinberger, pardoned six people. And special counsel Wash (phonetic) said this is outrageous. He's stopping the investigation.

Nobody talked about obstruction of justice. You cannot have obstruction of justice, when the president exercises his constitutional authority to pardon, his constitutional authority to fire the director of the FBI, or his constitutional authority to tell the director of the FBI who to prosecute, who not to prosecute. So let's get out of the weeds, and let's look at the big --

MIKE: So there it is. From one of the most respected legal minds in the country, who also happens to be a liberal. You cannot have obstruction of justice here. And what happened in no way was -- was anywhere near obstruction of justice. So how will Chuck Schumer -- how will Nancy Pelosi -- how will Maxine Waters -- how will all the hand-wringing Democrats deal with this? Well, you can bet they're going to keep hammering. They're going to keep hammering until they get something else, something else that will slow down the process.

There was also a discussion -- and I've been following, thanks to the crew here, the research crew here -- Keith has been digging up different quotes on this. Jamie Dupree, who is -- covers Congress for a couple different radio and TV outlets has been cherry-picking some of the most interesting moments from this hearing. And he said, Comey wrote memos about the Trump hearings and said, "Quote, I was honestly concerned that he would lie about the nature of our meeting." That's why he wrote it. So if he was actually nervous about it, we have to go back to the one question I would ask Comey. Why didn't you bring it up? Why did you wait till after you were fired? Why did this all happen only after you were fired?

The other statement that really -- really makes me crazy is Comey saying that the attorney general, Loretta Lynch, Bill Clinton meeting on the tarmac. That meeting that all of us realized was not about grandkids and golf. That any thinking sane person would say, no, they're not talking grandkids and golf for 45 minutes. Because even I, a golfer who obsesses about playing the game, knows that you will bore the tar out of people if you talk about golf for longer than five minutes. Even golfers get tired of it. We don't want to hear about it. We want to play. So sitting on the tarmac for 45 minutes, just when your wife Hillary happens to be under investigation. Oh, I don't know. And facing a possible breakdown in her dreams to become the president. And you've got the attorney general in front of you. Gee, do you think they were talking about grandkids and golf?

No. But Comey says the AG Lynch and Bill Clinton tarmac meeting was the reason he went public with the email investigation. Really? Was it because that meeting actually had something else going on and you couldn't let it just slide away? So you had to bring up the email investigation in order to maybe bring back some reality to the world?

This is amazing on so many levels. Very amazing.

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