WASHINGTON - Amid growing signs that special counsel Robert Mueller may be building an obstruction of justice case against President Donald Trump, one of the president’s lawyers has set legal experts buzzing with a controversial theory that because he is the nation’s chief law enforcement officer, nothing the president does can be considered obstruction of justice.
The argument has few defenders among American legal experts, including those who do not believe there is yet sufficient evidence to support an obstruction case against the president. But the U.S. Constitution does grant the holder of the nation’s highest office great latitude in law enforcement matters, including broad powers to direct investigations and pardon offenders.
While of considerable interest to scholars, the question whether a president can be guilty of obstruction of justice is more than academic.
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The case for an obstruction charge against Trump gained strength over the weekend when the president remarked in a tweet that he had fired his former national security adviser, Michael Flynn, partly because he had lied to the FBI.
Trump had said that he’d dismissed former FBI Director James Comey over the bureau’s probe into his campaign’s links to Russia; if Trump knew Flynn had committed a crime by lying to the FBI when he fired Comey in May, that would bolster the case for obstruction.
Trump lawyer John Dowd appeared to be trying to pre-empt any such step when he told the Axios website Monday that the president “cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case.”
Trump has said he’s not under investigation by the special counsel. Mueller’s office has declined to comment.
That the president has legal authority to order an end to an investigation is hardly controversial; as head of the executive branch, he is the country’s nominal chief law officer and enjoys broad prosecutorial discretion.
Among other things, the president has the authority to decide who should be investigated, though in practice presidents rarely interfere in criminal investigations.
But the president’s legal authority has limitations.
The law that makes it a crime to obstruct justice, or in legal lingo, hinder an “official proceeding,” doesn’t exclude the president. The charge requires proof of bribery or corrupt intent.
John Culhane, a professor at the Delaware Law School, said outright bribery by a president to stop an investigation would constitute obstruction of justice.
“It seems obvious that the president, like anyone else, could engage in action that we’d all think, ‘well, yah, that obstructed justice,’” Culhane said.
Even those who believe there is no case for obstruction of justice against Trump would not go so far as suggesting that a president is above the law.
Controversial Harvard Law Professor Alan Dershowitz, who frequently defends Trump’s policies on television, said he disagreed with the president’s lawyer that “a president can never be charged with obstruction of justice.”
Instead, he wrote in an opinion piece for The Hill on Tuesday, a president cannot be charged with the crime “if his only actions were constitutionally authorized.”
Former President George H. W. Bush pardoned five senior members of his predecessor’s administration, removing potential witnesses that could implicate him in the Iran-Contra scandal.
“Yet no one suggested President Bush be charged with obstruction of justice,” Dershowitz noted.
Andrew McCarthy, a fellow at the conservative National Review Institute, said Dowd’s comments were a muddled statement of otherwise sound constitutional principles.
“He framed that clumsily because if his position is that the president can’t obstruct justice, that would be absurd, and I don’t think he’s an absurd man,” McCarthy said.
Intent is harder to determine than bribery. In Trump’s case, investigators would have to establish that Trump corruptly intended to stop the FBI’s investigation into Flynn’s contacts with Russia’s ambassador to Washington.
Simply urging Comey to show leniency toward Flynn doesn’t meet the legal standard for obstruction of justice, McCarthy said.
On the other hand, “if the president were to say, I’m afraid Mike Flynn knows too much about my misconduct so I’d like the case dismissed against him, so that they can’t pressure him to testify about me, that is corrupt and that is something that Congress can address by impeachment,” McCarthy said.
But the question whether a president can be charged with obstruction of justice is somewhat moot; no sitting American president has been indicted in history, and the consensus among legal scholars is that presidents are immune from prosecution while in office.
Remedy rests with Congress
Ultimately, the remedy for dealing with presidential malfeasance rests with Congress. The U.S. Constitution allows for impeachment of the president for “high crimes and misdemeanors.”
The impeachable offenses have never been defined, but there is historic precedent to impeach a sitting president for obstruction of justice.
Former President Bill Clinton was impeached in 1998, in part for obstruction of justice, while one of three articles of impeachment brought against Richard Nixon in 1974 alleged obstruction of justice.
“So there is a template, or precedent, that could be used if Congress decided the issue was sufficiently serious to go in that direction,” Delaware law professor Culhane said.
As a senator in 1999, Jeff Sessions, now the current attorney general, argued strongly in favor of convicting Clinton on charges of obstruction of justice.
“The facts are disturbing and compelling on the president’s intent to obstruct justice,” Sessions said at the time.