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Alan Dershowitz says court ruling on travel ban ‘a complete defeat for the extremists’ – Boston Herald

Noted attorney and constitutional law expert Alan Dershowitz said he believes the Supreme Court will eventually uphold most, but not all, of President Trumps revised travel ban when the high court takes up the matter in the fall.

I think you have wrong people on both sides of the extreme, Dershowitz told Boston Herald Radios Morning Meeting co-hosts Jaclyn Cashman and Hillary Chabot. The answer the Supreme Court gave yesterday is that some parts of the order are going to be constitutional and some parts are going to be unconstitutional.

Those without citizenship or a direct tie to the U.S. do not have right tochallenge the ban and that fact is as important as the contents of the ban itself,Dershowitz said.

This is a complete defeat for the extremists on the other side, he said, including some of the other courts who stuck the whole thing down and didn’t bother to think about whether people who have no contact with the U.S. even have the right to raise this.

Dershowitz, who said he does not support Trumps order as a matter of policy, predicted SCOTUS will generally support the presidents broad authority to control immigration into the U.S. with exceptions similar to the ones the court carved out yesterday for people with credible claim of a bona fide relationship with people or organizations in the country.

The court ruled yesterday that Trumps temporary moratorium could go forward in some cases while justices prepare to hear full arguments in October. The ban, which affects travelers from Iran, Libya, Somalia, Sudan, Syria and Yemen, had previously been struck down by two lower courts.

The nations have been identified by the government as hotbeds of terrorism, and the Trump administration said it wants take the time during the ban to improve vetting procedures.

Trumps original order barred entry from all citizens of those countries and also established a 120-day moratorium in the United States refugee resettlement program. Dershowitz argued for the second, more moderate ban put forth by the White House after courts struck down the original order and said its incorrect to assert the presidents lack of authority when it comes to barring entry.

What many people are doing is substituting wishful thinking for constitutional analysis, he said. The president has broad authority to control our borders and individuals who have no contact with the United States, say a farmer from Yemen who wants to come and go to Disneyland, there is no right that he has to do that. He can be excluded simply by order of the president.”

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Alan Dershowitz says court ruling on travel ban ‘a complete defeat for the extremists’ – Boston Herald

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June 27, 2017   Posted in: Alan Dershowitz  Comments Closed

Alan Dershowitz: Supreme Court will likely uphold most of Trump travel ban – Washington Examiner

The Supreme Court’s decision to hear arguments in October regarding President Trump’s second travel ban may not itself tell us much about the likely outcome of the case. But the high court’s decision to allow parts of the ban to go forward now even before hearing the arguments strongly suggests that there is a majority of justices who will uphold the most important parts of the ban.

The Supreme Court decided to permit enforcement of the ban “with respect to foreign nationals who lack any bona fide relations with a person or entity in the United States.”

The justices thus drew the distinction I have been urging since the president issued his initial ban. In a series of columns and TV appearances, I urged the president to withdraw the first ban and substitute a version that excludes only individuals who do not have a green card or other connections to the United States. The Constitution accords very different protections to U.S. persons — including green card holders — than to individuals with no legal status in the U.S.

The example I gave was a man from Yemen who had never visited this country and has no connection to it but would like to take a trip to Disneyland. Such a person has no constitutional right to come into our country and he can be excluded for virtually any reason.

This does not mean that the courts would uphold a ban that expressly discriminates against Catholics, Jews or Muslims. But a ban that applies to countries that have a serious problem vetting potential terrorists would be valid even if all of those countries had Muslim majorities. The president has a right to focus on Islamic terrorism as a primary source of danger to Americans, and Islamic terrorism comes disproportionately from Muslim majority countries.

When Willie Sutton was asked “Why do you rob banks?” his answer was “Because that’s where the money is.” Of course, not all the money is kept in banks, and not all terrorists come from Muslim majority countries. But the president has wide authority to pick and choose among countries. Moreover, the countries selected by Trump were all previously selected by President Barack Obama for a related purpose.

Trump recently announced that he regretted substituting the second executive order for the first one, calling the second one a politically correct, watered-down version. The Supreme Court’s decision shows that he was wrong and that I was right in urging the administration to make the substitution.

It also shows that many of the pundits, including lawyers and law professors, were wrong when they predicted that the entire ban would be found unconstitutional. These good and decent people tend to substitute wishful thinking for hard constitutional analysis. But as Justice Oliver Wendell Holmes once put it: The job of the lawyer is to predict what the courts will do in fact.

But it is always difficult to predict how the justices will divide over a contentious issue such as the travel ban. The lower courts relied heavily on what Trump had said as a candidate with regard to banning Muslims from entering. The Supreme Court’s decision to allow part of the ban to go forward suggests that Trump’s statements will not be accorded the same weight by the Supreme Court that they were accorded by the lower courts.

The high court will recognize the implications of striking an otherwise legitimate ban because of what a president said when he was a candidate. To follow the lower court reasoning, the very same ban could be constitutional if issued by one president and unconstitutional if issued by another. That is not the way the law generally operates in this country.

So the travel ban will now go into effect with regard to non-American persons. It is impossible to know whether this will have any positive effect on reducing terrorist attacks in the U.S. But under our law, the president has no burden to prove that he is right as a matter of policy only that he had the authority to make the decision.

The Supreme Court is likely to find that he had that authority. There are parts of the travel ban that may face some criticism from the justices. But it is likely that the core of the ban will be upheld.

The president should not take this as a sign that he was correct in wanting to reissue the initial ban. The Supreme Court has signaled that at least parts of the initial ban would raise serious Constitutional issues.

Notwithstanding these early signs, it is still impossible to predict with certainty what the Supreme Court will do after hearing arguments in October. We cannot even be certain of the composition of the Supreme Court in light of persistent rumors regarding retirements.

But right now, if I had to bet widows and orphans money on the outcome of the case, I would bet that the high court would uphold those parts of the travel ban that applies to persons with no connection to the United States.

Alan Dershowitz (@AlanDersh) is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School and author of “Taking the Stand: My Life in the Law” and “Electile Dysfunction: A Guide for the Unaroused Voter.” This article was previously published by Fox News.

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Alan Dershowitz: Supreme Court will likely uphold most of Trump travel ban – Washington Examiner

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June 27, 2017   Posted in: Alan Dershowitz  Comments Closed

Dershowitz: Trump’s ‘Bluff’ on Comey Tapes a Legitimate Legal Move – Newsmax

President Donald Trump’s “bluff” over tapes of himself and James Comey was a purposely legal move to let the former FBI director know he had to be “very, very careful” about how he would testify, Alan Dershowitz said Friday.

The Harvard Law School professor emeritus said it’s a maneuver he’s pulled himself.

“I had a policeman on the witness stand lying about what he told my client,” Dershowitz told Fox News’ “America’s Newsroom” program. “I led him to believe I had a tape recording of it by reading from a transcript that seemed to be of a tape, that was actually a transcript of what my client told me he remembered. He changed his testimony, told the truth, we won the case.”

Show anchor Bill Hemmer called Dershowitz’s act “entrapment,” but the professor replied that it was “entrapment to the interest of justice,” just as Trump’s bluff was.

However, Dershowitz said he’s not really sure Trump’s bluff worked, or even helped.

“In the end, a special counsel was appointed, partly because Comey, who didn’t have the courage of his convictions, leaked information through a laundered source, a Columbia Law professor, in order to get a special counsel appointed.”

Comey was “calculating, designing to try and get a special counsel because he didn’t have the courage to stand in front of the TV cameras and say, ‘I want a special counsel appointed,’ said Dershowitz. “He did it surreptitiously, through leaks.”

Former FBI Director Robert Mueller was eventually appointed as the special counsel, and Trump said Thursday he’s bothered by the fact that the two ex-FBI heads are friends.

“If part of the investigation is how the president treated Comey by firing him the way he did, Mueller has a potential conflict of interest,” said Dershowitz. “I knew them both when they were U.S. Attorneys in Boston. They are close colleagues, they come from very similar backgrounds.”

Dershowitz said he hopes all parties will remain fair, but as it is a “criminal prosecution that’s political” that will be difficult to make happen.

“You can’t give the other side any opportunity to accuse you of political partisanship,” said Dershowitz, and he thinks it was a mistake for Mueller to hire people who have been supporters of Democratic nominee Hillary Clinton.

“Remember, that was one of the reasons that Senator Joe Lieberman did not get the job,” said Dershowitz. “People didn’t want anybody who had a political background to be had at the FBI.”

The other problem Dershowitz said that concerns him is that he doesn’t see there was a crime.

“Let’s assume that the Russians collaborated with the Trump administration,” said Dershowitz. “That would be horrible. Not only is there no evidence of it, it wouldn’t be a crime, it shouldn’t be a crime. There is no federal statute today prohibiting that.”

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June 25, 2017   Posted in: Alan Dershowitz  Comments Closed

Comment: Between Dershowitz and Stone, Dershowitz is pointlessly correct – The Jerusalem Post mobile website


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Comment: Between Dershowitz and Stone, Dershowitz is pointlessly correct
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Alan Dershowitz is a lawyer, an author, a gifted speaker, and a cultural icon in his own right. Alan Dershowitz is also a staunch supporter of Israel. When Dershowitz heard that Stone had blamed Israel of meddling with the recent US election, he

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Comment: Between Dershowitz and Stone, Dershowitz is pointlessly correct – The Jerusalem Post mobile website

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June 22, 2017   Posted in: Alan Dershowitz  Comments Closed

Dershowitz: Trump-Russia Probe Becoming ‘Too Political’

Alan Dershowitz is warning that the investigation into possible collusion between the Trump campaign and Russia has become “too political.”

On “Fox & Friends” this morning, Dershowitz,a legal scholar and Harvard University Law School professor, noted that several of the lawyers special counsel Robert Mueller has hired have donated to Democrats in the past.

“In a partisan atmosphere like this, you have to be so careful not to give the other side the ability to claim prejudice,” Dershowitz said. “And I think they have given the other side the ability to claim prejudice.”

Dershowitz added that it’s unlikely that Mueller himself can remain dispassionate in the case, considering his long-term friendship with former FBI Director James Comey, who was fired by President Trump.

“This is becoming very political, when you have the Justice Department itself being on both sides, prosecuting the president – possibly – and also serving as defense witnesses for the president,” Dershowitz said. “This is just becoming too political on both sides.”

He pointed out that Republicans, meantime, are calling for former Attorney General Loretta Lynch to be prosecuted.

“We have to stop criminalizing political differences,” Dershowitz said. “The criminal law should be reserved for obvious violations of the criminal law that exists, not for making political points against your political enemies on both sides.”

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June 21, 2017   Posted in: Alan Dershowitz  Comments Closed

Alan Dershowitz: ‘Corrupt motive’ is a slippery slope as the criterion for prosecuting a president – Washington Examiner

My academic and political colleagues who insist that President Trump has obstructed justice point to his allegedly “corrupt motive” in firing former FBI Director James Comey after telling him that he “hoped” he would end his investigation of retired Gen. Mike Flynn. They concede as Comey himself did that the president has the constitutional authority to fire the director and to order him to end (or start) any investigation, just as he has the authority to pardon anyone being investigated. But they argue that these constitutionally authorized innocent acts become criminal if the president was “corruptly motivated.”

This is a dangerous argument that no civil libertarian should be pressing. Nor would they be pressing it if the shoe were on the other foot.

If Hillary Clinton had been elected and Republicans were investigating her for asking the attorney general to describe the investigation of her as a “matter” rather than a “case,” my colleagues would be arguing against an expansive view of existing criminal statutes, as they did when Republicans were demanding that she be locked up for espionage. The same would be true if Bill Clinton or former Attorney General Loretta Lynch were being investigated for his visit to her when she was investigating his wife’s misuse of email servers.

“Corrupt motive” is an extraordinarily vague and open-ended term that can be expanded or contracted at the whim of zealous or politically motivated prosecutors. It is bad enough when this accordion-like term is used in the context of economic corruption, but it is far worse, and more dangerous to liberty, when used in the context of political disagreements.

In commercial cases where corrupt intent may be an element, the act itself is generally not constitutionally protected. It often involves a gray area financial transaction. But in political cases, especially those not involving money, the act itself is constitutionally protected, and the motive, which is often mixed, is placed on trial. It becomes the sole criteria for turning a constitutionally authorized political act into a felony.

What constitutes a corrupt motive will often depend on the political bias of the accuser. For some Democrats, the motives of all Republicans are suspect. The same is true for some Republicans. Corrupt motive is in the eye of the beholder, and the beholder’s eyes are often more open to charges of corrupt motives on the part of their political enemies than their political allies.

I know because I am currently being accused of being corruptly motivated in making my argument against charging President Trump with obstruction of justice. My emails are filled with such charges. The following email is typical:

“I want to know how much the Trump administration is funneling to you under the table, of course, to keep your support of him off the record? And if it’s not money, what sort pay off is it? Favors, promises, bribes…what?? Why all the secrecy when indirectly advising his legal team via cable networks’ panel discussions? I think your games, shenanigans and defense of this very disturbing man give the legal profession a black eye. Shame on you! Why not come out and openly defend Trump which you are obviously doing through innuendo?”

Others emails I have received include the following: “PLEASE BE TRUTHFUL. YOU ARE NOT A LIBERAL BUT RATHER A ZIONIST REPUBLICAN AUTHORITARIAN BIGOT” as well as “SELLING YOUR OPINION/SERVICES TO THE HIGHEST BIDDER!”

My motives have also been questioned by some of my academic and political colleagues. Am I being paid? Am I auditioning to be Trump’s lawyer? Do I want to be appointed to a judgeship? Am I really a secret Republican? Did I really vote for Clinton? Do I expect favors in return for my arguments?

The point is that many of those who disagree with my arguments refuse to believe that I am making them out of principle. They assume a corrupt motive.

The same is true in the larger political context. Each side believes the other is corrupt to the core. They question each other’s motives. That is why using the concept of “corrupt motive” to criminalize constitutionally authorized political actions is a dangerous double-edged sword that can be used against both Democrats and Republicans by politically motivated prosecutors.

Before the recent efforts to expand the obstruction statute to cover Trump, many civil libertarians, political liberals, defense attorneys and even judges were rightly critical of the expansive use of “corrupt motive” both in the context of commercial and political cases. But now that they see an opportunity to use this overbroad concept to “get” Trump, many of these same people have become enthusiastic supporters of expanding the open-ended law even further in a short-sighted effort to criminalize the constitutionally protected actions of a president they dislike.

Anglo-American law is based on precedent. What happens today can be used tomorrow. So beware of creating precedents that lie around like loaded weapons in the hands of over-zealous or politically motivated prosecutors.

Alan Dershowitz (@AlanDersh) is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School and author of “Taking the Stand: My Life in the Law” and “Electile Dysfunction: A Guide for the Unaroused Voter.” This article was previously published by the Gatestone Institute.

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Alan Dershowitz: ‘Corrupt motive’ is a slippery slope as the criterion for prosecuting a president – Washington Examiner

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June 21, 2017   Posted in: Alan Dershowitz  Comments Closed

Alan Dershowitz: Trump ‘should not be subject to criminal prosecution’ – Washington Examiner

Alan Dershowitz, professor emeritus at Harvard Law School, argued Monday that Trump should not face any criminal penalty just because he fired former FBI Director James Comey.

“The president of the United States should not be subject to criminal prosecution for merely exercising his constitutional authority,” he said on CNN.

“In the absence of any statute to the contrary, the president has the authority fire the director of the FBI, and the president has the power tell the director of the FBI who to investigate, who not to investigate,” he added.

Democrats have argued for months now that Trump fired Comey to disrupt the FBI’s investigation into Russia’s meddling in the election, which Democrats also say could show that Russia was colluding with Trump to bring down Clinton. Democrats admit there is no evidence of collusion so far, and recently have been arguing that Trump obstructed justice by encouraging Comey to drop the case.

But while Democrats have been saying Trump is trying to cover his tracks the way President Richard Nixon did, Dershowitz said the case is nothing like the Nixon coverup.

“This is not the Nixon case. This is the Bush case,” he said, referring to President George H.W. Bush’s pardon of former Defense Secretary Casper Weinberger. Weinberger was thought to have information linking Bush to the Iran-Contra affair.

“Nobody suggested obstruction of justice” in that case, Dershowitz said.

Dershowitz added it makes no sense to expand obstruction of justice to cover “constitutionally authorized” actions by the president.

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June 21, 2017   Posted in: Alan Dershowitz  Comments Closed

Alan Dershowitz: Democrats Are Trying to Do to Trump What Republicans Did to Hillary – Mediaite

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Alan Dershowitz says the commotion about President Trump being investigated for obstruction of justice all boils down to how what the Democrats are trying to do to [him] is exactly what some Republican extremists tried to do to Hillary Clinton.

Trump seemed to admit that he was under investigation in a tweet last week, though Jay Sekulow, the presidents lawyer, profusely denies that this is actually the case. Dershowitz spoke with Foxs Tucker Carlson about all of this, and the Harvard law professor said that all the talk of investigations and impeachment is essentially payback for the lock her up chants at Trumps 2016 campaign rallies.

The very people who were pushing for Donald Trump to be investigated, indicted, and impeached would be on the other side of the issue if the shoe were on the other foot, and if they were trying to expand the obstruction of justice statute or espionage statue and apply it to a Democrat rather than the Republican. I think we need a single standard of justice in this country. And I think both sides are trying to criminalize too much. If you disagree with people, throw them out of office, dont elect them. But the idea of charging your enemies with political crimes is too prevalent on both sides of the political aisle.

Dershowitz went on to talk about how Trump had the constitutional authority to fire James Comey and ask the former FBI director to cease his investigation into Michael Flynn. Without an independent investigation of criminal conduct, Dershowitz concluded, the current debate is promoting selective injustice that could give way to bad legal precedent.

Do you really want the presidency to turn on a subjective definition of a corrupt motive, rather than on objective evidence? Dershowitz asked. They are falling all over themselves, trying to find a statute that they can expand and they can apply only to Donald Trump and then, they will bury the statute and try to put it back in its crib.

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June 20, 2017   Posted in: Alan Dershowitz  Comments Closed

Dershowitz on Probe Outcome: Flynn Will ‘Probably’ Be Indicted – Newsmax

Renowned civil-rights lawyer Alan Dershowitz has issued a prediction as to how the federal probe into whether the Trump campaign colluded with Russia in influencing the 2016 presidential election will shake out.

“I think it’s going to end up probably with the indictment of [former national security adviser Michael] Flynn or possibly some others and very well may end up the president pardoning them,” Dershowitz said Friday to Newsmax TV’s Miranda Khan on “Newsmax Now.”

“That’s I think the most likely outcome. I do not think we will see the president indicted or charged or impeached unless more information of a very different kind emerges.

“But based on what we now know I think the people who are vulnerable are Flynn particularly and perhaps some others during the campaign who may have had improper contacts based on financial considerations with the Russians but that remains to be seen.”

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For the moment, Dershowitz believes, President Donald Trump who has repeatedly protested his innocence in any wrongdoing in connection with Russia, including possible obstruction of justice appears to be off the hook.

“Right now I do not see the president as being vulnerable to either criminal charges or impeachment. Impeachment of course is a political act so it’s not constrained by the law in the same way that a criminal charge is constrained by the law.”

Dershowitz, a retired Harvard Law professor, said special counsel Robert Mueller, appointed by the Justice Department to probe the Russia matter, is “rightfully” moving the investigation along rapidly.

“If you have a job, you do it quickly. You do it thoroughly. You investigate everything. I think the key point would come when he comes to the conclusion that the president may very well have tried to stop the investigation and then his legal advisors tell him that’s his constitutional authority,” Dershowitz said.

“He has the right to do that. He could’ve pardoned Flynn. He could’ve directed the head of the FBI to stop the investigation. That’s within his authority. The law should be changed. It should not be within within the authority of the president to direct the head of the FBI what to investigate and what not to investigate.”

He told Khan that Trump, who has condemned the investigation in a series of fiery tweets, should not attempt to fire Mueller.

“I don’t think the president should fire him. I think it would be an outrage if the president fired him. I don’t think it should be legal for the president to fire him,” he said.

Dershowitz also said he does not see any reason for Deputy Attorney General Rod Rosenstein to recuse himself from any matters involving the Russia investigation a possibility Rosenstein is reportedly mulling, according to ABC News.

“I don’t see the basis right now for recusal but if he becomes the subject of investigation himself and there were some rumors about that, obviously he would have to recuse. We’d have to go down to the next level, probably the head of the criminal division and below that,” he said.

“There are enough people in the Justice Department to conduct this investigation even if there is recusal.

“I also have heard rumors that Rod Rosenstein said he would quit in protest if the president fired Mueller who he appointed. That would be a perfectly appropriate political response to what would be a very wrong political decision by the president to fire the special counsel.”

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June 17, 2017   Posted in: Alan Dershowitz  Comments Closed

Alan Dershowitz says court ruling on travel ban ‘a complete defeat for the extremists’ – Boston Herald

Noted attorney and constitutional law expert Alan Dershowitz said he believes the Supreme Court will eventually uphold most, but not all, of President Trumps revised travel ban when the high court takes up the matter in the fall. I think you have wrong people on both sides of the extreme, Dershowitz told Boston Herald Radios Morning Meeting co-hosts Jaclyn Cashman and Hillary Chabot. The answer the Supreme Court gave yesterday is that some parts of the order are going to be constitutional and some parts are going to be unconstitutional. Those without citizenship or a direct tie to the U.S. do not have right tochallenge the ban and that fact is as important as the contents of the ban itself,Dershowitz said. This is a complete defeat for the extremists on the other side, he said, including some of the other courts who stuck the whole thing down and didn’t bother to think about whether people who have no contact with the U.S. even have the right to raise this. Dershowitz, who said he does not support Trumps order as a matter of policy, predicted SCOTUS will generally support the presidents broad authority to control immigration into the U.S. with exceptions similar to the ones the court carved out yesterday for people with credible claim of a bona fide relationship with people or organizations in the country. The court ruled yesterday that Trumps temporary moratorium could go forward in some cases while justices prepare to hear full arguments in October. The ban, which affects travelers from Iran, Libya, Somalia, Sudan, Syria and Yemen, had previously been struck down by two lower courts. The nations have been identified by the government as hotbeds of terrorism, and the Trump administration said it wants take the time during the ban to improve vetting procedures. Trumps original order barred entry from all citizens of those countries and also established a 120-day moratorium in the United States refugee resettlement program. Dershowitz argued for the second, more moderate ban put forth by the White House after courts struck down the original order and said its incorrect to assert the presidents lack of authority when it comes to barring entry. What many people are doing is substituting wishful thinking for constitutional analysis, he said. The president has broad authority to control our borders and individuals who have no contact with the United States, say a farmer from Yemen who wants to come and go to Disneyland, there is no right that he has to do that. He can be excluded simply by order of the president.”

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June 27, 2017   Posted in: Alan Dershowitz  Comments Closed

Alan Dershowitz: Supreme Court will likely uphold most of Trump travel ban – Washington Examiner

The Supreme Court’s decision to hear arguments in October regarding President Trump’s second travel ban may not itself tell us much about the likely outcome of the case. But the high court’s decision to allow parts of the ban to go forward now even before hearing the arguments strongly suggests that there is a majority of justices who will uphold the most important parts of the ban. The Supreme Court decided to permit enforcement of the ban “with respect to foreign nationals who lack any bona fide relations with a person or entity in the United States.” The justices thus drew the distinction I have been urging since the president issued his initial ban. In a series of columns and TV appearances, I urged the president to withdraw the first ban and substitute a version that excludes only individuals who do not have a green card or other connections to the United States. The Constitution accords very different protections to U.S. persons — including green card holders — than to individuals with no legal status in the U.S. The example I gave was a man from Yemen who had never visited this country and has no connection to it but would like to take a trip to Disneyland. Such a person has no constitutional right to come into our country and he can be excluded for virtually any reason. This does not mean that the courts would uphold a ban that expressly discriminates against Catholics, Jews or Muslims. But a ban that applies to countries that have a serious problem vetting potential terrorists would be valid even if all of those countries had Muslim majorities. The president has a right to focus on Islamic terrorism as a primary source of danger to Americans, and Islamic terrorism comes disproportionately from Muslim majority countries. When Willie Sutton was asked “Why do you rob banks?” his answer was “Because that’s where the money is.” Of course, not all the money is kept in banks, and not all terrorists come from Muslim majority countries. But the president has wide authority to pick and choose among countries. Moreover, the countries selected by Trump were all previously selected by President Barack Obama for a related purpose. Trump recently announced that he regretted substituting the second executive order for the first one, calling the second one a politically correct, watered-down version. The Supreme Court’s decision shows that he was wrong and that I was right in urging the administration to make the substitution. It also shows that many of the pundits, including lawyers and law professors, were wrong when they predicted that the entire ban would be found unconstitutional. These good and decent people tend to substitute wishful thinking for hard constitutional analysis. But as Justice Oliver Wendell Holmes once put it: The job of the lawyer is to predict what the courts will do in fact. But it is always difficult to predict how the justices will divide over a contentious issue such as the travel ban. The lower courts relied heavily on what Trump had said as a candidate with regard to banning Muslims from entering. The Supreme Court’s decision to allow part of the ban to go forward suggests that Trump’s statements will not be accorded the same weight by the Supreme Court that they were accorded by the lower courts. The high court will recognize the implications of striking an otherwise legitimate ban because of what a president said when he was a candidate. To follow the lower court reasoning, the very same ban could be constitutional if issued by one president and unconstitutional if issued by another. That is not the way the law generally operates in this country. So the travel ban will now go into effect with regard to non-American persons. It is impossible to know whether this will have any positive effect on reducing terrorist attacks in the U.S. But under our law, the president has no burden to prove that he is right as a matter of policy only that he had the authority to make the decision. The Supreme Court is likely to find that he had that authority. There are parts of the travel ban that may face some criticism from the justices. But it is likely that the core of the ban will be upheld. The president should not take this as a sign that he was correct in wanting to reissue the initial ban. The Supreme Court has signaled that at least parts of the initial ban would raise serious Constitutional issues. Notwithstanding these early signs, it is still impossible to predict with certainty what the Supreme Court will do after hearing arguments in October. We cannot even be certain of the composition of the Supreme Court in light of persistent rumors regarding retirements. But right now, if I had to bet widows and orphans money on the outcome of the case, I would bet that the high court would uphold those parts of the travel ban that applies to persons with no connection to the United States. Alan Dershowitz (@AlanDersh) is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School and author of “Taking the Stand: My Life in the Law” and “Electile Dysfunction: A Guide for the Unaroused Voter.” This article was previously published by Fox News. If you would like to write an op-ed for the Washington Examiner, please read ourguidelines on submissions here.

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June 27, 2017   Posted in: Alan Dershowitz  Comments Closed

Dershowitz: Trump’s ‘Bluff’ on Comey Tapes a Legitimate Legal Move – Newsmax

President Donald Trump’s “bluff” over tapes of himself and James Comey was a purposely legal move to let the former FBI director know he had to be “very, very careful” about how he would testify, Alan Dershowitz said Friday. The Harvard Law School professor emeritus said it’s a maneuver he’s pulled himself. “I had a policeman on the witness stand lying about what he told my client,” Dershowitz told Fox News’ “America’s Newsroom” program. “I led him to believe I had a tape recording of it by reading from a transcript that seemed to be of a tape, that was actually a transcript of what my client told me he remembered. He changed his testimony, told the truth, we won the case.” Show anchor Bill Hemmer called Dershowitz’s act “entrapment,” but the professor replied that it was “entrapment to the interest of justice,” just as Trump’s bluff was. However, Dershowitz said he’s not really sure Trump’s bluff worked, or even helped. “In the end, a special counsel was appointed, partly because Comey, who didn’t have the courage of his convictions, leaked information through a laundered source, a Columbia Law professor, in order to get a special counsel appointed.” Comey was “calculating, designing to try and get a special counsel because he didn’t have the courage to stand in front of the TV cameras and say, ‘I want a special counsel appointed,’ said Dershowitz. “He did it surreptitiously, through leaks.” Former FBI Director Robert Mueller was eventually appointed as the special counsel, and Trump said Thursday he’s bothered by the fact that the two ex-FBI heads are friends. “If part of the investigation is how the president treated Comey by firing him the way he did, Mueller has a potential conflict of interest,” said Dershowitz. “I knew them both when they were U.S. Attorneys in Boston. They are close colleagues, they come from very similar backgrounds.” Dershowitz said he hopes all parties will remain fair, but as it is a “criminal prosecution that’s political” that will be difficult to make happen. “You can’t give the other side any opportunity to accuse you of political partisanship,” said Dershowitz, and he thinks it was a mistake for Mueller to hire people who have been supporters of Democratic nominee Hillary Clinton. “Remember, that was one of the reasons that Senator Joe Lieberman did not get the job,” said Dershowitz. “People didn’t want anybody who had a political background to be had at the FBI.” The other problem Dershowitz said that concerns him is that he doesn’t see there was a crime. “Let’s assume that the Russians collaborated with the Trump administration,” said Dershowitz. “That would be horrible. Not only is there no evidence of it, it wouldn’t be a crime, it shouldn’t be a crime. There is no federal statute today prohibiting that.” 2017 Newsmax. All rights reserved.

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June 25, 2017   Posted in: Alan Dershowitz  Comments Closed

Comment: Between Dershowitz and Stone, Dershowitz is pointlessly correct – The Jerusalem Post mobile website

The Jerusalem Post mobile website Comment: Between Dershowitz and Stone, Dershowitz is pointlessly correct The Jerusalem Post mobile website Alan Dershowitz is a lawyer, an author, a gifted speaker, and a cultural icon in his own right. Alan Dershowitz is also a staunch supporter of Israel. When Dershowitz heard that Stone had blamed Israel of meddling with the recent US election, he … and more »

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June 22, 2017   Posted in: Alan Dershowitz  Comments Closed

Dershowitz: Trump-Russia Probe Becoming ‘Too Political’

Alan Dershowitz is warning that the investigation into possible collusion between the Trump campaign and Russia has become “too political.” On “Fox & Friends” this morning, Dershowitz,a legal scholar and Harvard University Law School professor, noted that several of the lawyers special counsel Robert Mueller has hired have donated to Democrats in the past. “In a partisan atmosphere like this, you have to be so careful not to give the other side the ability to claim prejudice,” Dershowitz said. “And I think they have given the other side the ability to claim prejudice.” Dershowitz added that it’s unlikely that Mueller himself can remain dispassionate in the case, considering his long-term friendship with former FBI Director James Comey, who was fired by President Trump. “This is becoming very political, when you have the Justice Department itself being on both sides, prosecuting the president – possibly – and also serving as defense witnesses for the president,” Dershowitz said. “This is just becoming too political on both sides.” He pointed out that Republicans, meantime, are calling for former Attorney General Loretta Lynch to be prosecuted. “We have to stop criminalizing political differences,” Dershowitz said. “The criminal law should be reserved for obvious violations of the criminal law that exists, not for making political points against your political enemies on both sides.” Watch more above. Former Obama Adviser: London Feels ‘Under Siege’ By Terrorism NFL’s Kaepernick Compares Cops to Fugitive Slave Patrols Even Liberals Are Worried About Liberal Extremism Nugent on Violent Political Rhetoric: ‘We Must All Unite’

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June 21, 2017   Posted in: Alan Dershowitz  Comments Closed

Alan Dershowitz: ‘Corrupt motive’ is a slippery slope as the criterion for prosecuting a president – Washington Examiner

My academic and political colleagues who insist that President Trump has obstructed justice point to his allegedly “corrupt motive” in firing former FBI Director James Comey after telling him that he “hoped” he would end his investigation of retired Gen. Mike Flynn. They concede as Comey himself did that the president has the constitutional authority to fire the director and to order him to end (or start) any investigation, just as he has the authority to pardon anyone being investigated. But they argue that these constitutionally authorized innocent acts become criminal if the president was “corruptly motivated.” This is a dangerous argument that no civil libertarian should be pressing. Nor would they be pressing it if the shoe were on the other foot. If Hillary Clinton had been elected and Republicans were investigating her for asking the attorney general to describe the investigation of her as a “matter” rather than a “case,” my colleagues would be arguing against an expansive view of existing criminal statutes, as they did when Republicans were demanding that she be locked up for espionage. The same would be true if Bill Clinton or former Attorney General Loretta Lynch were being investigated for his visit to her when she was investigating his wife’s misuse of email servers. “Corrupt motive” is an extraordinarily vague and open-ended term that can be expanded or contracted at the whim of zealous or politically motivated prosecutors. It is bad enough when this accordion-like term is used in the context of economic corruption, but it is far worse, and more dangerous to liberty, when used in the context of political disagreements. In commercial cases where corrupt intent may be an element, the act itself is generally not constitutionally protected. It often involves a gray area financial transaction. But in political cases, especially those not involving money, the act itself is constitutionally protected, and the motive, which is often mixed, is placed on trial. It becomes the sole criteria for turning a constitutionally authorized political act into a felony. What constitutes a corrupt motive will often depend on the political bias of the accuser. For some Democrats, the motives of all Republicans are suspect. The same is true for some Republicans. Corrupt motive is in the eye of the beholder, and the beholder’s eyes are often more open to charges of corrupt motives on the part of their political enemies than their political allies. I know because I am currently being accused of being corruptly motivated in making my argument against charging President Trump with obstruction of justice. My emails are filled with such charges. The following email is typical: “I want to know how much the Trump administration is funneling to you under the table, of course, to keep your support of him off the record? And if it’s not money, what sort pay off is it? Favors, promises, bribes…what?? Why all the secrecy when indirectly advising his legal team via cable networks’ panel discussions? I think your games, shenanigans and defense of this very disturbing man give the legal profession a black eye. Shame on you! Why not come out and openly defend Trump which you are obviously doing through innuendo?” Others emails I have received include the following: “PLEASE BE TRUTHFUL. YOU ARE NOT A LIBERAL BUT RATHER A ZIONIST REPUBLICAN AUTHORITARIAN BIGOT” as well as “SELLING YOUR OPINION/SERVICES TO THE HIGHEST BIDDER!” My motives have also been questioned by some of my academic and political colleagues. Am I being paid? Am I auditioning to be Trump’s lawyer? Do I want to be appointed to a judgeship? Am I really a secret Republican? Did I really vote for Clinton? Do I expect favors in return for my arguments? The point is that many of those who disagree with my arguments refuse to believe that I am making them out of principle. They assume a corrupt motive. The same is true in the larger political context. Each side believes the other is corrupt to the core. They question each other’s motives. That is why using the concept of “corrupt motive” to criminalize constitutionally authorized political actions is a dangerous double-edged sword that can be used against both Democrats and Republicans by politically motivated prosecutors. Before the recent efforts to expand the obstruction statute to cover Trump, many civil libertarians, political liberals, defense attorneys and even judges were rightly critical of the expansive use of “corrupt motive” both in the context of commercial and political cases. But now that they see an opportunity to use this overbroad concept to “get” Trump, many of these same people have become enthusiastic supporters of expanding the open-ended law even further in a short-sighted effort to criminalize the constitutionally protected actions of a president they dislike. Anglo-American law is based on precedent. What happens today can be used tomorrow. So beware of creating precedents that lie around like loaded weapons in the hands of over-zealous or politically motivated prosecutors. Alan Dershowitz (@AlanDersh) is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School and author of “Taking the Stand: My Life in the Law” and “Electile Dysfunction: A Guide for the Unaroused Voter.” This article was previously published by the Gatestone Institute. If you would like to write an op-ed for the Washington Examiner, please read ourguidelines on submissions here.

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June 21, 2017   Posted in: Alan Dershowitz  Comments Closed

Alan Dershowitz: Trump ‘should not be subject to criminal prosecution’ – Washington Examiner

Alan Dershowitz, professor emeritus at Harvard Law School, argued Monday that Trump should not face any criminal penalty just because he fired former FBI Director James Comey. “The president of the United States should not be subject to criminal prosecution for merely exercising his constitutional authority,” he said on CNN. “In the absence of any statute to the contrary, the president has the authority fire the director of the FBI, and the president has the power tell the director of the FBI who to investigate, who not to investigate,” he added. Democrats have argued for months now that Trump fired Comey to disrupt the FBI’s investigation into Russia’s meddling in the election, which Democrats also say could show that Russia was colluding with Trump to bring down Clinton. Democrats admit there is no evidence of collusion so far, and recently have been arguing that Trump obstructed justice by encouraging Comey to drop the case. But while Democrats have been saying Trump is trying to cover his tracks the way President Richard Nixon did, Dershowitz said the case is nothing like the Nixon coverup. “This is not the Nixon case. This is the Bush case,” he said, referring to President George H.W. Bush’s pardon of former Defense Secretary Casper Weinberger. Weinberger was thought to have information linking Bush to the Iran-Contra affair. “Nobody suggested obstruction of justice” in that case, Dershowitz said. Dershowitz added it makes no sense to expand obstruction of justice to cover “constitutionally authorized” actions by the president.

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June 21, 2017   Posted in: Alan Dershowitz  Comments Closed

Alan Dershowitz: Democrats Are Trying to Do to Trump What Republicans Did to Hillary – Mediaite

Watch the latest video at video.foxnews.com Alan Dershowitz says the commotion about President Trump being investigated for obstruction of justice all boils down to how what the Democrats are trying to do to [him] is exactly what some Republican extremists tried to do to Hillary Clinton. Trump seemed to admit that he was under investigation in a tweet last week, though Jay Sekulow, the presidents lawyer, profusely denies that this is actually the case. Dershowitz spoke with Foxs Tucker Carlson about all of this, and the Harvard law professor said that all the talk of investigations and impeachment is essentially payback for the lock her up chants at Trumps 2016 campaign rallies. The very people who were pushing for Donald Trump to be investigated, indicted, and impeached would be on the other side of the issue if the shoe were on the other foot, and if they were trying to expand the obstruction of justice statute or espionage statue and apply it to a Democrat rather than the Republican. I think we need a single standard of justice in this country. And I think both sides are trying to criminalize too much. If you disagree with people, throw them out of office, dont elect them. But the idea of charging your enemies with political crimes is too prevalent on both sides of the political aisle. Dershowitz went on to talk about how Trump had the constitutional authority to fire James Comey and ask the former FBI director to cease his investigation into Michael Flynn. Without an independent investigation of criminal conduct, Dershowitz concluded, the current debate is promoting selective injustice that could give way to bad legal precedent. Do you really want the presidency to turn on a subjective definition of a corrupt motive, rather than on objective evidence? Dershowitz asked. They are falling all over themselves, trying to find a statute that they can expand and they can apply only to Donald Trump and then, they will bury the statute and try to put it back in its crib. Watch above, via Fox. [Image via screengrab] > > Follow Ken Meyer (@KenMeyer91) on Twitter Have a tip we should know? tips@mediaite.com

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June 20, 2017   Posted in: Alan Dershowitz  Comments Closed

Dershowitz on Probe Outcome: Flynn Will ‘Probably’ Be Indicted – Newsmax

Renowned civil-rights lawyer Alan Dershowitz has issued a prediction as to how the federal probe into whether the Trump campaign colluded with Russia in influencing the 2016 presidential election will shake out. “I think it’s going to end up probably with the indictment of [former national security adviser Michael] Flynn or possibly some others and very well may end up the president pardoning them,” Dershowitz said Friday to Newsmax TV’s Miranda Khan on “Newsmax Now.” “That’s I think the most likely outcome. I do not think we will see the president indicted or charged or impeached unless more information of a very different kind emerges. “But based on what we now know I think the people who are vulnerable are Flynn particularly and perhaps some others during the campaign who may have had improper contacts based on financial considerations with the Russians but that remains to be seen.” See Miranda Khanon Newsmax TV: Tune in beginning at 5 PM EDT to “Newsmax Now” on FiOS 115/615, YouTube Livestream, Newsmax TV App from any smartphone, NewsmaxTV.com, Roku, Amazon Fire More Systems Here For the moment, Dershowitz believes, President Donald Trump who has repeatedly protested his innocence in any wrongdoing in connection with Russia, including possible obstruction of justice appears to be off the hook. “Right now I do not see the president as being vulnerable to either criminal charges or impeachment. Impeachment of course is a political act so it’s not constrained by the law in the same way that a criminal charge is constrained by the law.” Dershowitz, a retired Harvard Law professor, said special counsel Robert Mueller, appointed by the Justice Department to probe the Russia matter, is “rightfully” moving the investigation along rapidly. “If you have a job, you do it quickly. You do it thoroughly. You investigate everything. I think the key point would come when he comes to the conclusion that the president may very well have tried to stop the investigation and then his legal advisors tell him that’s his constitutional authority,” Dershowitz said. “He has the right to do that. He could’ve pardoned Flynn. He could’ve directed the head of the FBI to stop the investigation. That’s within his authority. The law should be changed. It should not be within within the authority of the president to direct the head of the FBI what to investigate and what not to investigate.” He told Khan that Trump, who has condemned the investigation in a series of fiery tweets, should not attempt to fire Mueller. “I don’t think the president should fire him. I think it would be an outrage if the president fired him. I don’t think it should be legal for the president to fire him,” he said. Dershowitz also said he does not see any reason for Deputy Attorney General Rod Rosenstein to recuse himself from any matters involving the Russia investigation a possibility Rosenstein is reportedly mulling, according to ABC News. “I don’t see the basis right now for recusal but if he becomes the subject of investigation himself and there were some rumors about that, obviously he would have to recuse. We’d have to go down to the next level, probably the head of the criminal division and below that,” he said. “There are enough people in the Justice Department to conduct this investigation even if there is recusal. “I also have heard rumors that Rod Rosenstein said he would quit in protest if the president fired Mueller who he appointed. That would be a perfectly appropriate political response to what would be a very wrong political decision by the president to fire the special counsel.” 2017 Newsmax. All rights reserved.

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June 17, 2017   Posted in: Alan Dershowitz  Comments Closed


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