Comey confirms that I'm right - and all the Democratic commentators are wrong

Alan Dershowitz

Comey's opening testimony: Trump admin lied, defamed me

In his testimony former FBI director James Comey echoed a view that I alone have been expressing for several weeks, and that has been attacked by nearly every Democratic pundit.

Comey confirmed that under our Constitution, the president has the authority to direct the FBI to stop investigating any individual. I paraphrase, because the transcript is not yet available:  the president can, in theory, decide who to investigate, who to stop investigating, who to prosecute and who not to prosecute.  The president is the head of the unified executive branch of government, and the Justice Department and the FBI work under him and he may order them to do what he wishes.                    

As a matter of law, Comey is 100 percent correct.  As I have long argued, and as Comey confirmed in his written statement, our history shows that many presidents—from Adams to Jefferson, to Lincoln, to Roosevelt, to Kennedy, to Bush 1, and to Obama – have directed the Justice Department with regard to ongoing investigations. The history is clear, the precedents are clear, the constitutional structure is clear, and common sense is clear.

Yet virtually every Democratic pundit, in their haste to “get” President Trump, has willfully ignored these realities.  In doing so they have endangered our civil liberties and constitutional rights.

Now that even former Director Comey has acknowledged that the Constitution would permit the president to direct the Justice Department and the FBI in this matter, let us put the issue of obstruction of justice behind us once and for all and focus on the political, moral, and other non-criminal aspects of President Trump’s conduct.

Comey’s testimony was devastating with regard to President Trump’s credibility – at least as Comey sees it.  He was also critical of President Trump’s failure to observe the recent tradition of FBI independence from presidential influence.  These are issues worth discussing but they have been distorted by the insistence of Democratic pundits that Trump must have committed a crime because they disagree with what he did politically.

Director Comey’s testimony was thoughtful, coherent and balanced.  He is obviously angry with President Trump, and his anger has influenced his assessment of the president and his actions.  But even putting that aside, Comey has provided useful insights into the ongoing investigations.

I was disappointed to learn that Comey used a Columbia law professor as a go-between to provide information to the media.  He should have has the courage to do it himself.  Senators must insist that he disclose the name of his go-between so that they can subpoena his memos and perhaps subpoena the professor-friend to provide further information.

I write this short op-ed as Comey finishes his testimony. I think it is important to put to rest the notion that there was anything criminal about the president exercising his constitutional power to fire Comey and to request – “hope” – that he let go the investigation of General Flynn. Just as the president would have had the constitutional power to pardon Flynn and thus end the criminal investigation of him, he certainly had the authority to request the director of the FBI to end his investigation of Flynn.

So let’s move on and learn all the facts regarding the Russian efforts to intrude on American elections without that investigation being impeded by frivolous efforts to accuse President Trump of committing a crime by exercising his constitutional authority.

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House Republicans Pass Bill to Rein In Dodd-Frank

On Thursday, while seemingly everyone in Washington was fixated on former FBI Director James Comey’s testimony before the Senate Intelligence Committee, House Republicans were busy. A bill entitled the Financial Choice Act was passed, along party lines, which aims to significantly roll back many of the onerous banking regulations created by the Dodd-Frank Act. Referencing the need to continue the process of government deregulation, House Speaker Paul Ryan (R-WI) tweeted, “Let me put it this way: #DoddFrank is more than a thousand pages long and has more rules and regulations than any Obama-era law.”

While the Financial Choice Act does not repeal Dodd-Frank, it does go a long way in reining in its congressionally independent powers. The House Republicans' bill specifically targets the Consumer Financial Protection Bureau (CFPB), an unelected and unaccountable board of bureaucrats. Clamping down on the CFPB’s ability to create new financial regulations without approval from Congress is a very welcome change given the fact that elected representatives, not unelected bureaucrats, should have the power and responsibility to create significant rules and regulations. The new bill also stops the CFPB from collecting consumers' information without their permission.

Democrats' justification for the passage of Dodd-Frank was to prevent a repeat of the 2008 financial crisis — a crisis for which Democrats sowed the seeds with housing regulation. As is often the case with onerous government regulations, Dodd-Frank proved to do little in the way of actually helping small businesses and small banks, instead hurting them and resulting in years of sluggish economic growth. Rep. Rod Pittenger (R-NC) states, “Local bank leaders tell me they now hire more compliance officers than loan officers, as filling out forms for bureaucrats has become more important than growing the economy.” The irony in Dodd-Frank is that its regulations, which were supposed to protect the little guy, have proven to prevent and hinder economic growth and opportunity for the little guy.

Many are predicting that the House bill is dead on arrival in the Senate, and it is certain to undergo significant changes, but there are some Democrats who have voiced support for reforming Dodd-Frank.

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President Trump’s Lower-Court Nominees Are As Good As His SCOTUS Pick

Whatever’s happening with James Comey’s testimony, Donald Trump’s Twitter account, or congressional inaction on Obamacare repeal, tax reform, or much of anything else, from where I stand all that is fake news designed to distract your eyes from the prize: we have more judicial nominees!

This week, in an echo of how the 21 contenders for the Supreme Court vacancy were rolled out during the presidential campaign, 11 would-be black-robers join last month’s stellar list of 10 lower-court nominees. They join the one confirmed nominee, Sixth Circuit Judge Amul Thapar, who was elevated from a Kentucky district court after having been on that list of Supreme Court potentials.

Case Western law professor Jonathan Adler, who appeared with me on a panel at Cato’s 40th anniversary celebration right before the May 8 announcement, says they’re “‘incredibly strong nominees’ who were within the judicial mainstream and should ‘have an intellectual influence on their courts.’” As they say in Congress, I wish to associate myself with that analysis—and to extend those remarks to apply to all the nominees we’ve seen thus far.

Let’s Take a Look:

In that first batch are two state justices who were on the potential Supreme Court list, Michigan’s Joan Larsen (nominated to the Sixth Circuit) and Minnesota’s David Stras (nominated to the Eighth Circuit). These are engaged and scholarly jurists—both former law professors who still teach on the side—who will make terrific circuit judges.

Eleventh Circuit nominee Kevin Newsom, a former Alabama solicitor general who hosted me when I spoke to the Birmingham Federalist Society chapter earlier this year, is a serious lawyer and public servant who will serve the nation well even if I disagree some with his interpretation of the Slaughterhouse cases.

Pacific Legal Foundation’s Damien Schiff, with whom I’ve worked on many cases, is an inspired pick for the Court of Federal Claims, an Article I court that mainly handles government-contract disputes and property-rights claims against the government. Throughout his career, Damien has shown a commitment to protecting individual rights against government overreach.

This week’s second batch brought us three more circuit court nominees, including Justice Allison Eid of the Colorado Supreme Court to fill Neil Gorsuch’s vacant Tenth Circuit seat and professor Stephanos Bibas of the University of Pennsylvania Law School for the Third Circuit. I know Eid by reputation. A former clerk for Supreme Court Justice Clarence Thomas, she’s a thoughtful and intellectual jurist much in the mold of her former boss. Bibas is one of the top criminal-law scholars in the country. I’ve worked with him professionally and had drinks personally; he’ll be outstanding but leaves a gaping hole as faculty adviser for Penn’s Federalist Society chapter.

Then there’s Stephen Schwartz, an old friend who was a few years behind me at the University of Chicago Law School and has also been nominated to the U.S. Court of Federal Claims. Stephen has the perfect blend of nerdiness and skepticism of federal power that the job demands.

I’ll Never Tire of This Kind of Winning
If the other eight announced June 7 are of the same caliber as these three (and the previous 10)—and we have no reason to think otherwise given that the administration’s nominations staff is the same—then this is the sort of #winning of which I won’t ever tire.

The only curiosity is the continued absence of Justice Don Willett of the Texas Supreme Court—and indeed no nominees to the Fifth Circuit at all. As Hugh Hewitt tweeted, of the 11 original SCOTUS short-listers, five were state judges. Three have now been nominated to the federal appellate courts. The two remaining are Tom Lee of Utah (which has no current vacancies) and Willett (and Texas has two vacancies). Moreover, Willett was apparently one of the five or six finalists for the seat that Gorsuch filled, and is close to Texas Sen. Ted Cruz. So you’d think he’d be a shoo-in.

Now, it’s certainly possible there’ll be some grand bargain whereby two other worthies get the Fifth Circuit slots but Willett goes to the high court whenever Justice Anthony Kennedy decides to retire. But that’s pie-in-the-sky because so many other stakeholders are involved at that point. Of course, if this deal—a fabulous deal, believe me!—is ratified by the president himself, that would be bigly indeed.

In the meantime, the White House counsel’s office should just keep these black-robe orders coming. Their work, and that of the Federalist Society’s Leonard Leo, has allowed President Trump—regardless of what else he does with his time—to continue fulfilling what was probably his most important campaign promise: to appoint “the best” judges.

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Justice Department Ends Government Bankrolling of Liberal Groups in Legal Settlements

The federal government no longer will make settlement agreements with any person or organization not directly involved in a legal dispute, Attorney General Jeff Sessions announced Wednesday.

The move by Sessions abolished a practice that has funneled likely millions of dollars in banking settlements to outside organizations in such “third-party” payments.

Left-wing groups, including La Raza and NeighborWorks America, benefited from the practice, The Daily Signal previously reported.

In a formal statement, Sessions said: Effective immediately, [Justice] Department attorneys may not enter into any agreement on behalf of the United States in settlement of federal claims or charges, including agreements settling civil litigation, accepting plea agreements, or deferring or declining prosecution in a criminal manner, that directs or provides for a payment or loan to any non-governmental person or entity that is not a party to the dispute.

For over a decade, the Justice Department has permitted corporations found guilty of wrongdoing to pay part of their financial penalty as a donation to certain pre-approved nonprofit organizations, as The Daily Signal reported last year.

After the 2008 financial crisis, the Obama administration alleged that banks were responsible for inflating the mortgage bubble.

The Justice Department and the banks settled with the settlements running into the millions of dollars, Paul J. Larkin, a senior legal fellow at The Heritage Foundation, told The Daily Signal in an interview.

Sometimes the Justice Department would allow donations to third parties to be counted toward the settlement value.

The practice is unlawful, said Larkin, whose work on the issue was cited by Sessions in the attorney general’s decision.

“Some of the settlements allowed a settling party to treat $1 given to a favored organization as counting for $2 toward the settlement,” Larkin said.

He added:

Federal law requires Justice Department lawyers to deposit the funds they receive from a settlement into the U.S. Treasury so that Congress, not the president or the Justice Department, can decide how those funds should be spent.

The announcement is welcome news, Steven J. Allen, vice president and chief investigative officer at the Capitol Research Center, a conservative research institution based in Washington, told The Daily Signal in a phone interview Wednesday.

“It’s about time that someone did something about this,” Allen said. “It is a practice that had been going on throughout the government for decades, and we need to crack down. This is a very important first step by the attorney general.”

Sen. Chuck Grassley, R-Iowa, chairman of the Judiciary Committee, praised Sessions’ move.

“Today’s decision by the attorney general to end the Justice Department’s use of settlement agreements to fund politically favored organizations is a win for the victims in such disputes and for checks and balances in government,” Grassley said. “Under the Constitution, Congress holds the purse strings.”

The decision by President Donald Trump’s attorney general to end third-party settlements also benefits taxpayers, Larkin said.

“Sessions’ decision is the right one because it ends an unlawful and unethical Justice Department practice,” he said. “The department’s third-party payment practice was tantamount to the theft of money that belonged to the public.”

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