Donald Trump has congressional immunity. Yes or no? - Macleans.ca
 

Donald Trump has congressional immunity. Yes or no?

Alan Dershowitz responds to Laurence Tribe. As the temperature rises in the Russia investigation, constitutional experts face off.


 

US President Donald Trump walks from Marine One after arriving on the South Lawn of the White House in Washington, DC, September 27, 2017, after traveling to Indiana to unveil his tax reform plan. (Saul Loeb/AFP/Getty Images)

My colleague Larry Tribe’s response is unfortunately not responsive to my arguments. He erects several straw men, which he proceeds to knock down, but he fails to respond to my most compelling arguments.

Two striking examples: Larry correctly points out that congressional immunity is based explicitly on the text of the Constitution, but he fails to deal with my other primary example—judicial immunity. There is no mention of judicial immunity in the Constitution, and yet the Supreme Court has ruled that the separation of powers and checks and balances requires that judges be immune for conduct that is part of their constitutionally authorized powers. If he is to argue that the inclusion of congressional immunity in the Constitution precludes immunity for members of other branches, he must respond to my argument about judicial immunity. That he fails to do so reveals the weakness in his constitutional analysis.

Follow the full exchange in Maclean’s:

Second, I provide three specific examples of presidential acts that he ignores: President George H.W. Bush was neither charged nor impeached for pardoning Casper Weinberger and other potential witnesses against him—acts that the special prosecutor believed were clearly motivated by a desire to protect himself. Nor does he deal with the fact that presidents Nixon and Clinton were not impeached for merely exercising their constitutional authority. Congressional committees went out of their way to specify criminal acts beyond those authorized by Article II. Larry must deal with these examples. While doing so, he may also want to consider the failed impeachment of former president Andrew Johnson for firing a Cabinet member in violation of the Tenure of Office act passed by Congress. The Supreme Court ultimately held that act unconstitutional as violative of separation of powers.

The cases Larry cites do not deal directly with the issue of whether a president can be charged with criminal conduct for merely exercising his Constitutional powers. His inclusion of impeachment is yet another straw man, since my article does not suggest that a president could not be impeached for improperly pardoning or firing an executive official. That remains an open question. The text of the Constitution suggests that impeachment must be based on “treason, bribery or other high crimes or misdemeanors,” but Congress may have the power to broaden these categories.

READ MORE: Trump says he has no intention of firing Mueller

Larry includes among alleged criminal acts by President Trump telling the director of the FBI to go easy on General Flynn. But he fails to respond to my more general point that our Constitution authorizes the president to direct his attorney general who to prosecute and who not to prosecute.  Thomas Jefferson did that, as did Abraham Lincoln, FDR, and Barack Obama.

Larry’s most dangerous argument—and several of his arguments endanger our liberties—is that “placing presidential pride over the nation’s sovereignty is a grave abuse of presidential power by anyone’s definition.” All presidents are motivated in part by “pride” and other personal considerations. If questionable motives could turn an Article II exercise of presidential power into crimes, there would be no limits to the criminalization of political differences.

Finally, Larry characterizes my arguments as “familiar,” as if that were a bad thing. He is, of course, correct about them being familiar since I have been making them for nearly 50 years. I opposed the naming of Richard Nixon as an unindicted co-conspirator. I railed against the impeachment and prosecution of former president Clinton. And I strongly opposed efforts to criminalize Hillary Clinton’s carelessness. Yes, my arguments are familiar because I have been consistent in making them for half a century. They are not about Donald Trump. They are about the institution of the presidency and our constitutional system of separation of powers and checks and balances.

This exchange demonstrates that Larry Tribe and I respectfully disagree about fundamental issues regarding our Constitution and efforts to criminalize political conduct. I think the general public can learn from our clash of ideas. Accordingly, I renew my challenge to my friend and colleague to engage in a public debate now while these important issues are at the forefront of public controversy. CNN has offered an international platform for this debate. I have accepted CNN’s invitation. I urge Larry to do so as well, so that we can respond to each other’s arguments in the court of public opinion. And let the citizens decide. That’s how democracy works best.

Editor’s Note: Mr. Tribe has already publicly offered via Twitter to debate Mr. Dershowitz, but not before May when his book To End a Presidency: The Power of Impeachment is due to be published. He says the offer stands.

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Donald Trump has congressional immunity. Yes or no?

  1. This article is correct. Conclusion. Their constitution needs to be ammended so that the president has to follow the same laws as any citizen and cannot pardon ANYONE. This election showed that any shmuck can get elected based solely on star power regardless of qualifications or past legal issues. TRUMP wouldn’t be able to pass a security clearance to be a receptionist at the white house but is somehow president. Fix your system ffs!

    • @Stevan – This question was totally irrelevant You sound like a Clinton cry-baby.
      .

      • I agree. Clinton cry babies seem to be in abundance these days. No one is proposing to argue whether the Constitution needs to be amended to make you happy. Reread the article.

        • The Clinton crybabies have quieted down substantially in the last few weeks, thanks to revelations via IG Horowitz. The Politico article re: Hezbollah drug money has also shaken up the Democrats.

    • Removing presidential immunity would result in the effective criminalization of politics in America. Both parties have been accusing the other of crimes since at the least the 1990’s.

  2. Quite interesting that Laurence Tribe is afraid to debate Alan Dershowitz until May. I doubt it has a thing to do with his book coming out. I will bet he thinks everyone, including Mr. Dershowitz and members of CNN, will forget about it by then. He will not win. A Dershowitz is unbiased in his legal opinions and is willing to prove it. L Tribe is definitely biased and will have a tough, if not impossible, time getting anyone to believe him. He should have kept his mouth shut earlier.