Dershowitz: Trump Exercised 'Constitutional Authority' by Firing 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, Harvard Law School professor emeritus Alan Dershowitz argued Monday.

"I come not to praise President Trump nor to defend his policies, but to defend the constitution," Dershowitz said during an early morning legal debate with CNN senior legal analyst Jeffrey Toobin on the network's "New Day" program.

"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."

Toobin, however, argued that nobody, even the president, is above the law.

"That's the message of Watergate and American history at its best," said Toobin. "The principle here is that obstruction of justice is just a law like any other and the president is bound to follow it.

"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, though, argued the Trump questions are not like those surrounding Nixon, but compared more to when President George H.W. Bush pardoned former Defense Secretary Casper Weinberger and six others in connection with the Iran-Contra Affair.

According to Time, the pardons stopped the legal proceedings against Weinberger and the others, and potentially himself, as he could have been called in to testify.

"Bush pardoned Weinberger at a time when Weinberger might have been pointing a finger directly at Bush," said Dershowitz. "Nobody suggested obstruction of justice.

"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 authoritied presidential actions."

Toobin, though, argued that nobody has the right to obstruct justice.

"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?"

Trump's motives about firing Comey also should not be probed, if he acted properly, said Dershowitz.

"What's the reason between pardoning for a bad reason and firing for a bad reason?" said Dershowitz, again returning to the Bush argument.

"Once we start looking at bad reasons, we're in to Stalin and Barea, 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."

Toobin argued that Dershowitz was focusing just on the firing, but not the activity, but Dershowitz said Trump had the power to tell Comey not to investigate national security director Michael Flynn.

"That's a terrible law," he acknowledged. "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."