Dershowitz vs. Toobin: Trump’s ‘Constitutional Authority’ in Firing Comey?

| June 21, 2017
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Alan Dershowitz (right) vs. Jeffrey Toobin (left)


Once we start looking at bad reasons, we’re into Stalin and Beria, when the head of the KGB said, ‘show me the man and I’ll find you the crime.’ What we see here is an attempt understandably bipartisan Democrats to find a crime against Donald Trump.

~ Alan Dershowitz

[N]obody, even the president, is above the law.

~ Jeffrey Toobin



On June 19th CNN’s “New Day” program held a televised formal debate between Professor Emeritus of Harvard Law School, Alan Dershowitz and CNN legal analyst Jeffrey, a Harvard law graduate and former student of Dershowitz on the question—Did President Trump exercise constitutional authority in firing former FBI Director, James Comey? ” President Donald Trump was exercising his constitutional authority when he fired James Comey as the head of the FBI, and should not come under criminal prosecution for his decision,” Professor Dershowitz said in his opening arguments.

Dershowitz vs. Toobin—Rule of Law vs. Emotionalism

Echoing Marc Antony’s eulogy to Caesar in Shakespeare’s play, Julius Caesar, Dershowitz declared, “I come not to praise President Trump nor to defend his policies, but to defend the constitution,” as CNN senior legal analyst Jeffrey Toobin looked on in dismay. “The president of the United States should not be subject to criminal prosecution for merely exercising his constitutional authority.” In the absence of any specific statutes in the matter, a president not only has the right to fire an FBI director, Dershowitz continued, but has the power “to tell the director of the FBI who to investigate and who not to investigate.”

In contrast to Dershowitz’s narrow, directed answer of the thesis question, Toobin, however, argued in broader terms and erected a red herring that “nobody, even the president, is above the law.” (*N.B.: At the onset of this debate Toobin is flunking Debate 101 in that the question he answered was not the question poised. Toobin here is employing a sophistic and common debate tactic of setting up a red herring fallacy because his arguments on the initial question are anti-a priori – servile and perfunctory, weak and unconvincing. Secondly, nobody even poised the question that the president is acting above the law). “That’s the message of Watergate and American history at its best,” Toobin continued. “The principle here is that obstruction of justice is just a law like any other and the president is bound to follow it.

*N.B.: Full disclosure regarding my views of Toobin as a legal scholar. I have little confidence in his reasoning abilities. To wit, I did a thorough analysis of Toobin’s 2011 New Yorker article on Justice Clarence Thomas, reprinted in my multi-volume book, The Progressive Revolution, Vol. 5 (pp. xivff). As with this debate against his professor/mentor Dershowitz demonstrates from beginning to end, Toobin’s legal reasoning skills are infantile and unremarkable, incomplete and inextricably conflated with his extreme Progressive/Socialist politics. This seems to be the case with virtually all the so-called Democrat Party media today. Their irrelevant, incessant chatter, their Trump Derangement Syndrome which according to Dr. Michael Savage makes ‘this Fourth Estate become the Fifth Column’. Democrat disinformation or fake news amounts to the same effect as 10,000 monkeys typing on 10,000 keyboards in perpetuity and vainly expecting one monkey to eventually produce Shakespeare’s Richard III. Veritas will never proceed out of disinformation, obsession and lies.

Bound by the slave chains of his Democrat partisanship Toobin then ignores history of the two Democrat presidents who were impeached in U.S. history (Andrew Johnson [removed from office on Feb. 24, 1868], and William Jefferson Clinton, who was convicted on two articles of impeachment for obstruction of justice during an investigation into a sex scandal [Dec. 19, 1998 – Feb. 12, 1999]. Clinton also temporarily lost his license to practice law for 5 years and had to pay a large fine of almost $1,000,000 to plaintiff Paula Jones. Yet Toobin ignored all this history and as a reflexive partisan jumped right onto the Left’s favorite Republican president meme that Richard Nixon would have been impeached had he not resigned instead, Richard Nixon—”In 1974 the House Judiciary Committee voted articles of impeachment against Richard Nixon on the grounds he obstructed justice by using the FBI improperly. I don’t know if Donald Trump is guilty of obstruction of justice, but I do know the facts that are public now suggest that an investigation is entirely appropriate.”

Dershowitz, a master debater who although is politically progressive, is generally principled and usually argues passionately for the rule of law despite which political side the law helps or hurts. Responding to Toobin’s hackneyed Nixon canard, Dershowitz rightfully argued that the Trump case is very different from those legal questions pertaining to Nixon, but found a more appropriate analogy not to Nixon but to when President George H.W. Bush pardoned former Defense Secretary Casper Weinberger and six others in connection with the Iran-Contra Affair.

Accordingly, Dershowitz argued that “Bush pardoned Weinberger at a time when Weinberger might have been pointing a finger directly at Bush,” and further contended at that time in history “Nobody suggested obstruction of justice.” According to an article in Time the effect  of the Bush  pardons stopped the legal proceedings against Weinberger and the others, which in effect protected President Nixon personally since Weinberger and other high-ranking officials in his administration perhaps had legally damaging information against the president who would have then been forced to testify against himself in a public legal proceeding.

Giving his student a somewhat backhanded compliment, but also to expose the weaknesses and hypocrisy of Toobin’s arguments, Dershowitz said, “Some years ago, a great lawyer stood up and opposed expansion of espionage statutes to cover what Hillary Clinton did. He talked about the dangers of expanding statutes. That great lawyer was Jeffrey Toobin. “He should be saying the same today about not expanding obstruction of justice to cover constitutionally authorized presidential actions.”

Toobin, using anti-a priori arguments (“relating to or denoting reasoning or knowledge that proceeds from theoretical deduction rather than from observation or experience“), caused him to fail to set a proper predicate to support his legal arguments, or even develop a fully formed idea that nobody has the right to obstruct justice (despite Obama, Hillary, Podesta, the Democrat Party, et al., through WikiLeaks documents having perverted the rule of law and obstructed justice hundreds of times). “It is true the president can fire the director of the FBI, but that act can be evidence of a broader obstruction of justice,” he said. “For example, my favorite law professor that loves hypotheticals, what if Donald Trump said to James Comey, I am going to fire you unless you give me $100,000? Is that constitutionally protected?”

The question of Trump’s motives regarding the Comey was a major argument that Toobin and the Democrat Party put forth, however, Dershowitz said that one’s motives should not be probed, if he acted properly within his sphere of constitutional authority. “What’s the reason between pardoning for a bad reason and firing for a bad reason?”  Dershowitz argued, revisiting the Bush/Weinberger argument. “Once we start looking at bad reasons, we’re into Stalin and Beria, when the head of the KGB said, ‘show me the man and I’ll find you the crime.’ What we see here is an attempt understandably bipartisan Democrats to find a crime against Donald Trump.” This quote by Beria is derivative of the birth of modern liberalism—The French Revolution (1789-99)—particularly its most fanatical and bloodthirsty adherent, the lawyer, Robespierre who infamously said, “There are no crimes, only criminals.”

“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.

Toobin repeatedly criticized Dershowitz for keeping his focus so narrowly on the firing of Comey by Trump, and for not considering the larger arguments of possibly illegal political activity and evil intent on Trump’s part, but Dershowitz responded that Trump indeed had the constitutional authority to command Comey not to investigate national security director Michael Flynn. “That’s a terrible law,” Dershowitz here is conceding that this presidential power is much too broad and he accepted that “the constitution should be changed, but under the current constitution and under the absence of a special prosecutor statute, the president has the unlimited authority to do that. Just like you can’t prove the president’s motive for pardon, you can’t probe his motive for firing.”

But if Trump goes beyond his constitutional authority, including committing a crime such as destroying evidence, “of course he’s subject to prosecution.” “It’s not part of his authority to bribe,” said Dershowitz. “The very act of taking money is independently a crime. The very act of lying to the FBI is a crime. That’s not constitutionally protected. Pardoning is, firing is, and directing the FBI not to investigate, is.”


In conclusion, Democrats have argued for almost a year now since July 2016, that Trump fired Comey to ‘illegally’ stop the FBI’s investigation into Russia’s interfering in the U.S. election, which according to the Democrats argue that this Russian interference and colluding with Trump led directly to Clinton losing the 2016 election and Trump winning. However, Democrats have of late been forced to acknowledge there is no evidence of collusion, and since the Comey hearings completely destroyed that Democrat false meme of Trump/Russia collusion, the Democrats (following Saul Alinsky’s Rules for Radicals—Rule 12), have changed their attacks and lately have been arguing that ‘Trump obstructed justice’ by pressuring Comey to drop the case. Yet, in none of the Comey memos or congressional testimony issued thus far has Comey (or anyone else privy to these conversations) ever admitted that he was pressured by Trump to drop the investigation into the Trump/Russia collusion fake story.

Nevertheless, Democrats have an obsessive, irrational hatred against Trump that is a barrier against all reason and will eventually lead to the Democrats becoming the irrelevant party (like the Whig Party of 1834), perpetually appealing to radicals and anarchists. Democrats like Toobin thus have been arguing that Trump is trying to cover his tracks the way President Richard Nixon did. Dershowitz however said the case is nothing like the Nixon coverup because Trump’s firing of Comey (for any reason or no reason at all) is completely within his constitutional authority.

But when has the Democrat Socialist Party ever allowed the Constitution to stop them from achieving their Machiavellian means/end; their Nietzschean Will to Power? Perhaps the Age of Trump will change this evil, tyrannical paradigm and usher in an era of renewed respect for the rule of law, Natural Law and Natural Rights of We the People.

*N.B.: This essay is based in part on an article by Sandy Fitzgerald.



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About the Author ()

Ellis Washington, since his intellectual apotheosis embracing a Conservative and ‘America First’ worldview (Christmas Day, 1982), has been a Blacklisted Black Intellectual in America—his promising academic career all but destroyed by the Marxist Academy and liberal hegemony through invidious discrimination, nevertheless his Credo—Lex iniusta non est lex—‘An unjust law is no law at all,’ and his Manifesto chronicles his existential struggles against Liberal Fascism that continues to this day for me, and against hundreds of thousands of other minority academics who reject Globalism, Progressivism, Liberal Fascism, and Socialism Slavery in all of its surreptitious guises. *N.B.: See biographical essays Birth of a Conservative Intellectual, Part 1 and Birth of a Conservative Intellectual, Part 2. Washington is a graduate of DePauw University (B.M., Education/History, 1983); University of Michigan (M.M., Music Performance [French horn], 1986; John Marshall Law School (J.D., 1994); Post-graduate studies at Harvard (Musicology, Law, 1988-89) and Michigan State University (History, 2004). Washington is a former Staff Editor at the Michigan Law Review (1989), Law Clerk at the Sixty-Plus Elder Law Clinic (1991), and Law Clerk at The Rutherford Institute (1992). Presently he is an Adjunct Professor of Law at the National Paralegal College and the National Juris University, where he has taught courses in—Constitutional Law, Legal Ethics, Contracts, Property, Administrative Law, American History, Advanced Legal Writing, and in many other subjects. A founding board member of Salt and Light Global, LLC (2014), a Christian-based legal/education organization dedicated to protecting First Amendment Religious Liberty, Washington was a co-host on Joshua's Trial, a radio show of Christian conservative thought (2010-16). A prolific writer on numerous disciplines, his latest law review articles include: Nigger Manifesto: Institutional, Intellectual and Ideological Racism inside the American Academy, “UnNatural Law of Justice Oliver Wendell Holmes” (—forthcoming, Faulkner Law Review, Fall 2017) and Social Darwinism in Nazi Family and Inheritance Law." Washington has written 10 books where many of his writings have been accepted in the Chambers Library of the Supreme Court including his latest opus is a 5-Volume collection of over 1,200 essays, articles, monographs, law review manuscripts, and Socratic dialogues – THE PROGRESSIVE REVOLUTION, Vols. I-V: 2009-16 Writings —History of Liberal Fascism through the Ages, (University Press of America, 2009-16). Visit his Law & History blog,, an essential repository of history, legal history, politics, philosophy, critical theory, and literary classics dedicated to educating future generations of ‘America First’ Nationalists, young Conservative intellectuals and Critical Thinkers of every ideological spectrum. Contact Ellis at his email:, at his Twitter @EllisWashington , and at his Facebook page.

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