Can Presidents Obstruct Justice? Republicans and Democrats Say Yes

The following article by John T. Bennett was posted on the Roll Call website December 11, 2017:

Durbin: ‘Desperate statement’ suggests ‘they expect to lose on the merits’

Republican and Democratic lawmakers say an assertion by Donald Trump’s personal lawyer that a sitting president cannot obstruct justice is dubious, warning the White House there is ample precedent to the contrary.

The members were reacting to Trump lawyer John Dowd’s legal argument in a recent interview with Axios that “the president cannot obstruct justice because he is the chief law enforcement officer under [Article II of the Constitution] and has every right to express his view of any case.”

Lawmakers from both parties rejected the claim as legally flimsy, and a few suggested it is politically treacherous. Some Democrats see Dowd’s argument as “desperation” from the Trump legal team, and even some Republican lawmakers are advising the president and his lawyers to find another legal defense strategy.

“I remember a president saying that once. His name was Richard Milhous Nixon. Oh yeah, that’s who it was,” said Sen. Patrick J. Leahy, a former chairman of the Senate Judiciary Committee. “We all saw how well that worked for him.” (The 37th president resigned when it became apparent Congress was likely to impeach and remove him from office amid the Watergate scandal.)

“Of course, the president can obstruct the law,” the Vermont Democrat said. “This is like saying a president couldn’t commit murder or anything else. Nobody’s above the law, just as Richard Nixon found out.”

Looking back

South Carolina Sen. Lindsey Graham, a senior Republican Judiciary member who was a military lawyer, suggested Dowd consider obstruction precedent.

“There’s the ‘Can you be charged as a civilian with obstruction of justice?’ debate,” he said, referring to Article II of the Constitution that covers offenses for which a sitting president can be removed from office by Congress. “Then there’s the ‘Can obstruction become a high crime and misdemeanor?’ debate.”

“And the answer to that is ‘yes,’” Graham added. “You’ve got [President Bill] Clinton, you’ve got Nixon, so there’s plenty of precedent that obstruction of justice can be a ‘high crime or a misdemeanor’ under the Constitution for impeachment purposes. … In terms of being charged in federal court or state court, I don’t know if that can happen while you’re president because that’s an unsettled question.”

Ty Cobb, a White House lawyer overseeing the presidential team’s involvement in the Russia investigation, has said Dowd’s theory would not be the basis of any legal defense.

Still, Graham’s assessment highlights the black cloud Trump and Dowd have helped hang over this presidency with their tweets and public comments — especially because experts stress that impeachment-and-removal proceedings are largely a political exercise rather than a process meant to prove criminal activity.

The framers of the Constitution did not provide a strict definition for the phrase “high crimes and misdemeanors” when they crafted the country’s bedrock legal document. However, its roots date to 1386 in English law, with that country’s Parliament using the term as a way of measuring when to remove officials of the Crown from office, according to the Constitutional Rights Foundation, a Los Angeles-based nonprofit civic group.

A foundation fact sheet says the term applies in cases when a public official has “somehow abused the power of his office and [is] unfit to serve.”

All atwitter

Dowd’s assertion came after another self-created legal issue by the president and his aides. The lawyer was attempting to shield Trump after a Dec. 2 tweet in which the president said he “had to” fire former national security adviser Michael Flynn “because he lied to the Vice President and the FBI. He has pled guilty to those lies.” Dowd later said he wrote the tweet.

The president had not previously disclosed that he knew as early as January that the retired three-star general had misled federal officials, to which he pleaded guilty Dec. 1.

Before his Dec. 2 tweet, Trump had pinned the Flynn firing on his misleading of Vice President Mike Pence.

Former FBI Director James B. Comey — whom the president also later fired — wrote in a memo that Trump told him in the Oval Office in February, “I hope you can let this go,” a reference to the Russia probe that focused on Flynn.

On Dec. 3, Trump tweeted before sunrise, “I never asked Comey to stop investigating Flynn. Just more Fake News covering another Comey lie!”

Comey leaked that memo in May after being fired, prompting legal experts to suggest Trump may have obstructed justice.

Dowd’s comments after the Dec. 2 tweet set off another round of talk about obstruction, which experts say would be a more solid basis for any impeachment effort once special counsel Robert S. Mueller III has wrapped up his Russia investigation.

Lawmaker concerns

Any serious impeachment proceedings would be, at a minimum, months away. The House last week easily killed articles of impeachment brought by Texas Democrat Al Green, and House Democratic leaders have counseled their flock that now is not the time to bring up impeachment, and that several investigations should be given time to work.

In Dowd’s legal analysis, some Democratic lawmakers saw the Trump legal team floating a notion that has long been debated in legal circles in an attempt to begin mounting a defense. But they doubt it would withstand legal scrutiny.

Senate Democratic Whip Richard J. Durbin, also a member of the Judiciary Committee, called Dowd’s contention “a ridiculous statement.”

“To suggest that the president is above the law and cannot be held accountable is not consistent with what I understand this democracy to be all about,” the Illinois Democrat said. “That is a desperate statement. It says that they expect to lose on the merits, and they’re going to argue on some strained legal theory that the president cannot be held accountable.

“In a democracy, that is unacceptable,” he said. “They’re tossing out tweets, some by the president, some by his lawyer. So who knows, at this point, whether this is some legitimate assertion of some contrived defense.”

One Republican member of the House Judiciary Committee who was granted anonymity to discuss the president candidly said Dowd “should try to re-articulate that statement in some way.”

“This is a rule-of-law country,” the GOP lawmaker said. “We’re under people’s law, not ruler’s law. … The president himself knows that all the laws that apply to all Americans certainly apply to him.”

Expert appraisals

Since Dowd’s comment was published, legal scholars have opined in various ways — many offering nuanced legal assessments that underscore how murky his assertion is. Others have been clear in their reading of the Constitution.

“Obstruction of justice is a crime with roots in the nation’s founding. The Declaration of Independence charged King George III with ‘obstruct[ing] the administration of justice, by refusing his assent to the laws for establishing judiciary powers,’” Daniel Hemel, a University of Chicago Law School professor, wrote last week. “That alone is evidence that the founding generation did not believe that heads of state were immune from obstruction charges.”

Harvard Law School professor Alan Dershowitz, however, warns that if Congress were to impeach and oust Trump for firing Comey, the country would dive into a “constitutional crisis.” That’s because lawmakers would be punishing the president for “exercising his Constitutional authority under Article II.”

“Look, the president could have pardoned Flynn if he were really thinking about trying to end this investigation,” Dershowitz said on one of Trump’s favorite morning news programs, “Fox & Friends.”

“[Trump] would have pardoned Flynn and then Flynn wouldn’t be cooperating with the other side, and the president would have had the complete authority to do so,” he said. “And Flynn never would have been indicted, never would have turned as a witness against him.”