What is the name of your state (only U.S. law)? Federal law applies.
I just wrote this piece and am hoping for criticism or correction for any misconstrual of the applicable laws. This is not a pending case, obviously, I am merely seeking further understanding. I will quote the entire article (I am the sole author thereof, no rights of republication apply), apologies for the lack of citations of US Code, I will supply them if requested.
Okay, Alan Dershowitz made a bit of a splash over on the rightie websites with his “Democrats are wrong, I am right, Comey agrees that the President has the unlimited authority to end an investigation and because of that he is incapable of committing obstruction of justice!!!” — or words to that effect.
I’m not a lawyer. I’m a cabinetmaker. But I’m a curious cabinetmaker, and since this statement didn’t seem to ring true to me, I decided to do a little digging around. Here are the results of my “amateur hour” research:
What methods would a President use to bring about the termination of an investigation? That was my first question. According to Dershowitz, a simple order would do and that would end the matter immediately. But how much authority does a President have to command his subordinates? There is nothing in the FBI oath, or even the oath which the director or the Attorney General swear that mentions obeying ANYBODY. They are sworn to defend the Constitution. In the military oath of enlistment, there is a sworn duty to obey the President and the orders of officers, but again, no similar phrasing in any oath for civil servants of any stripe. So nothing doing so far…
My second question was what penalties exist for failure to execute a lawfully given order. There are none in the US Code. The US Uniform Code Of Military Justice clearly defines insubordination, dereliction of duty, misbehavior before the enemy, probably others as well, and lists the penalties which may apply in each case. It seems to me that if a duty to obey exists, then corresponding penalties for disobedience would also exist. They do not. Which makes me question exactly what constitutes this “unlimited power” which is vested in the office of the President. I understand he is the head of the executive, but with no sworn oath to obey him or penalties for failure to do so, that alone would seem to limit his powers substantively. So, still nothing….
Which still leaves a few options open. As I said, I am completely new to this and have no legal background whatsoever, so if I am making any mistakes I apologize in advance and would also invite corrections to my thinking. Having said that, I believe the President could issue an executive order that would terminate the investigation. As we well know, that does not mean the matter is settled. If the courts were to find someone with the legal standing to challenge the order (and I believe the director would have the standing to do so), then the matter would be open to review by the courts. Unless there is a matter of national security or some equal import involved, ending a legal and constitutionally valid investigation might prove difficult. Executive orders are reviewable not only to ensure that they are legal and constitutional, but also that they are not arbitrary or capricious in nature. I’d be a fool to make a definitive statement predicting what the court may hold, but I’m fairly confident saying that a stay would be placed upon such an order. Nothing yet…..
There is also the possibility of executive privilege. It is defined as “the power to resist certain subpoenas and other interventions by the legislative and/or judicial branches….” — this one is dicier ground, since it specifies “by the legislative and/or judicial”. Since the executive is the branch which exerts authority over the FBI (and DOJ as a whole), its application doesn’t seem appropriate. I’m just trying to cover all the bases, here. At any rate, executive privilege is not absolute, it too is subject to judicial review, and its invocation has been overturned in the past. Still nada…...
The one power which is vested in the office of the President which seems inviolable is the power of pardon. Dershowitz has made mention of that, so apparently he is not completely out to sea, here. One would think that a pardon would end the matter immediately, finally, and without possibility of review by anyone under any circumstances. And it would, inasmuch as the subject of the pardon could not possibly be prosecuted by a federal court for any wrongdoing found in the course of the investigation. But would that end the investigation? This is where my lack of knowledge really comes into play, and I am pretty much guessing, here, but I would assert that if the investigation found wrongdoing among more than one party, that everyone potentially involved in it would have to be pardoned in order for the investigation to be unable to bear fruit (and would likely be terminated on the grounds of not being able to provide successful prosecution). If an investigation (let’s throw caution to the wind and use an actual name, here) into Mike Flynn, for example, overlapped with an investigation into J.B. Sessions (hypothetically), I believe the investigation would continue into Flynn as well, at least as far as his participation in the actions of J.B Sessions was concerned. For legal purposes, I should say that these names would only coincidentally be those of living persons, lol. So without Trump literally having to pardon everyone conceivably connected to the investigation, I believe it could legally and constitutionally continue for as long as the FBI director deemed necessary. Still looking…….
The other, and final, recourse the President may have to end an investigation would be to terminate the director. This hardly supports Dershowitz’s assertion that the President has the power to end an investigation, since he may have to fire multiple directors before finding one who will play ball. He probably wouldn’t be successful appointing one of his sons or his daughter (assuming this hypothetical president had children of both sexes) as FBI director. So it follows that he may have to settle for a director who believes in the autonomy of the FBI….at which point the process would begin again. And finally, nothing. Alan, what did I miss?
Again, apologies for any mistakes in thinking or errors in interpretation of the matter. I’m Canadian, so US law is literally foreign to me. Please feel free to correct any factual or interpretative errors (or spelling, anything at all) in the comment sections — you would be helping me learn more about the matter if you did so, and I thank you in advance.
I just wrote this piece and am hoping for criticism or correction for any misconstrual of the applicable laws. This is not a pending case, obviously, I am merely seeking further understanding. I will quote the entire article (I am the sole author thereof, no rights of republication apply), apologies for the lack of citations of US Code, I will supply them if requested.
Okay, Alan Dershowitz made a bit of a splash over on the rightie websites with his “Democrats are wrong, I am right, Comey agrees that the President has the unlimited authority to end an investigation and because of that he is incapable of committing obstruction of justice!!!” — or words to that effect.
I’m not a lawyer. I’m a cabinetmaker. But I’m a curious cabinetmaker, and since this statement didn’t seem to ring true to me, I decided to do a little digging around. Here are the results of my “amateur hour” research:
What methods would a President use to bring about the termination of an investigation? That was my first question. According to Dershowitz, a simple order would do and that would end the matter immediately. But how much authority does a President have to command his subordinates? There is nothing in the FBI oath, or even the oath which the director or the Attorney General swear that mentions obeying ANYBODY. They are sworn to defend the Constitution. In the military oath of enlistment, there is a sworn duty to obey the President and the orders of officers, but again, no similar phrasing in any oath for civil servants of any stripe. So nothing doing so far…
My second question was what penalties exist for failure to execute a lawfully given order. There are none in the US Code. The US Uniform Code Of Military Justice clearly defines insubordination, dereliction of duty, misbehavior before the enemy, probably others as well, and lists the penalties which may apply in each case. It seems to me that if a duty to obey exists, then corresponding penalties for disobedience would also exist. They do not. Which makes me question exactly what constitutes this “unlimited power” which is vested in the office of the President. I understand he is the head of the executive, but with no sworn oath to obey him or penalties for failure to do so, that alone would seem to limit his powers substantively. So, still nothing….
Which still leaves a few options open. As I said, I am completely new to this and have no legal background whatsoever, so if I am making any mistakes I apologize in advance and would also invite corrections to my thinking. Having said that, I believe the President could issue an executive order that would terminate the investigation. As we well know, that does not mean the matter is settled. If the courts were to find someone with the legal standing to challenge the order (and I believe the director would have the standing to do so), then the matter would be open to review by the courts. Unless there is a matter of national security or some equal import involved, ending a legal and constitutionally valid investigation might prove difficult. Executive orders are reviewable not only to ensure that they are legal and constitutional, but also that they are not arbitrary or capricious in nature. I’d be a fool to make a definitive statement predicting what the court may hold, but I’m fairly confident saying that a stay would be placed upon such an order. Nothing yet…..
There is also the possibility of executive privilege. It is defined as “the power to resist certain subpoenas and other interventions by the legislative and/or judicial branches….” — this one is dicier ground, since it specifies “by the legislative and/or judicial”. Since the executive is the branch which exerts authority over the FBI (and DOJ as a whole), its application doesn’t seem appropriate. I’m just trying to cover all the bases, here. At any rate, executive privilege is not absolute, it too is subject to judicial review, and its invocation has been overturned in the past. Still nada…...
The one power which is vested in the office of the President which seems inviolable is the power of pardon. Dershowitz has made mention of that, so apparently he is not completely out to sea, here. One would think that a pardon would end the matter immediately, finally, and without possibility of review by anyone under any circumstances. And it would, inasmuch as the subject of the pardon could not possibly be prosecuted by a federal court for any wrongdoing found in the course of the investigation. But would that end the investigation? This is where my lack of knowledge really comes into play, and I am pretty much guessing, here, but I would assert that if the investigation found wrongdoing among more than one party, that everyone potentially involved in it would have to be pardoned in order for the investigation to be unable to bear fruit (and would likely be terminated on the grounds of not being able to provide successful prosecution). If an investigation (let’s throw caution to the wind and use an actual name, here) into Mike Flynn, for example, overlapped with an investigation into J.B. Sessions (hypothetically), I believe the investigation would continue into Flynn as well, at least as far as his participation in the actions of J.B Sessions was concerned. For legal purposes, I should say that these names would only coincidentally be those of living persons, lol. So without Trump literally having to pardon everyone conceivably connected to the investigation, I believe it could legally and constitutionally continue for as long as the FBI director deemed necessary. Still looking…….
The other, and final, recourse the President may have to end an investigation would be to terminate the director. This hardly supports Dershowitz’s assertion that the President has the power to end an investigation, since he may have to fire multiple directors before finding one who will play ball. He probably wouldn’t be successful appointing one of his sons or his daughter (assuming this hypothetical president had children of both sexes) as FBI director. So it follows that he may have to settle for a director who believes in the autonomy of the FBI….at which point the process would begin again. And finally, nothing. Alan, what did I miss?
Again, apologies for any mistakes in thinking or errors in interpretation of the matter. I’m Canadian, so US law is literally foreign to me. Please feel free to correct any factual or interpretative errors (or spelling, anything at all) in the comment sections — you would be helping me learn more about the matter if you did so, and I thank you in advance.
