You may recall that back in March, President Donald Trump fired the US Attorney for the Southern District of New York, Preet Bharara. Since that time, many media outlets have proposed that the firing of Bharara may be yet another means for Trump to curtail the Trump / Russia investigation. Just like when Trump relieved Sally Yates and James Comey of their duties, he has made many strategic maneuvers which make it at least appear as though he has diligently been trying to “obstruct” the investigation.
Trump supporters have come to his side, in trying to explain that an acting president has every right to relieve U.S. Attorneys, FBI Directors and Attorney Generals of their duties, at their own desire. Perhaps this is true, but the question remains: “Does this actually immunize Trump from obstructing justice in doing so?”
We may have an answer, at least from Bharara’s perspective. In a tweet made this past Friday, Joe Scarborough of NBC posted, “I eagerly await the flood of experts explaining why Donald Trump firing Comey to obstruct justice is not obstruction of justice.”
In response to Scarborough, Alan Dershowitz, a former professor at Harvard Law School, and a well known advocate of civil liberties, responded stating, “Because a president has the unreviewable authority to fire the Director for any reason.” — certain a fair explanation, one which some would be led to believe, especially if you are a Trump supporter.
However, Preet Bharara responded to Dershowitz’s explanation with an explanation of his own, which takes the cake: “That far from answers the question, as you well know. I’m not yet saying obstruction, but mere authority to fire does NOT immunize the act. In fact by this absurd logic, most obstruction cases would fail on basis of general ‘authority’ to shred documents, coach witnesses, etc.”
Under Dershowitz’s explanation, just about all obstruction of justice cases could be defended easily by stating that authority overrules obstruction, which it should not. This means that if Bharara’s interpretation of law is correct, Donald Trump could be convicted on obstruction of justice charges for the firings, not only of James Comey but also Sally Yates and Bharara himself, if he’s found to have obstructed justice in doing so. Of course, if the authority to fire does not immunize Trump from a possible indictment/conviction, it certainly wouldn’t immunize him from being impeached.