Is the President above the law?
“Well, when the President does it, that means that it is not illegal.” —Richard Nixon to David Frost, 1977 https://twitter.com/BeschlossDC/status/937713342701080581/photo/1
I remember that line not working out so well for old Tricky Dick.
The Trump defense team, aka the Trump Traveling Circus, has moved from “he didn’t obstruct” to “so what if he did?” Or as Susan Hennessey put it:
The pattern thus far: “There was no collusion” became “Collusion isn’t a crime.”Now, “There was no obstruction”becomes “Obstruction isn’t a crime when POTUS does it.”
Josh Blackman, writing for one of my favorite blogs, @Lawfareblog, concludes:
Either as a matter of statutory or constitutional law, the president cannot obstruct justice when he exercises his lawful authority that is vested by Article II of the Constitution. Part II of this series will consider whether Trump’s actions concerning the firing of FBI Director James Comey comport, or fall outside, this principle.
The estimable Benjamin Wittes disagrees somewhat with Mr. Blackman, writing in Part II, that:
I think it is defined by the President’s oath of office and the Take Care Clause. That is, as long as the President is operating plausibly within the boundaries of the Take Care Clause, which requires that he “Take Care that the laws be faithfully executed,” and within the parameters of his oath to “faithfully execute” the duties of President, he probably cannot be said to act with the requisite criminal intent to violate the obstruction statutes with an otherwise lawful act of managing the Executive Branch. But I do think it’s at least theoretically possible for the President to issue orders to the Executive Branch that are so outside of the bounds of those clauses that a reasonable jury could lawfully regard him as acting with the requisite mens rea for conviction under one or more of the statutes.
And finally, Randall Eliason writes in the Washington Post:
But what is clear is that Dershowitz and Dowd have cited no legal authority for the extraordinary proposition that, when it comes to obstruction, the president is above the law. Nixon famously told David Frost, “When the president does it, that means it is not illegal.” Dershowitz and Dowd are making a variation of that same argument — but pursuing that particular constitutional theory did not end well for Nixon.
Does trying to derail an investigation constitute obstruction of justice?
In 1999, speaking in the impeachment trial in favor of convicting President Bill Clinton, then-Senator Sessions argued powerfully that it does.
“The chief law officer of the land, whose oath of office calls on him to preserve, protect and defend the Constitution, crossed the line and failed to defend the law, and, in fact, attacked the law and the rights of a fellow citizen,” Sessions said during Clinton’s trial in the Senate, two months after he was impeached by the House. “Under our Constitution, equal justice requires that he forfeit his office.”
Can the President be indicted for a crime, or is impeachment the sole remedy?
In 2000, the Office of Legal Counsel drafted a memo, which updated a 1973 memo. It concluded that “The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
If you want to take the deep dive, it’s here.
If the President cannot be indicted while in office, there is a fair chance that he would get off with nothing more than the loss of office following impeachment, even if he committed a fairly serious crime, because the statute of limitations might well run before he became a private citizen
Mr. Wittes appears to agree with the OLC interpretation:
For present purposes, let’s assume he cannot be indicted (which I actually believe is the correct reading of the law). This view does not resolve the question of whether he is liable after impeachment and removal (or just after he leaves office) to criminal prosecution for an allegedly obstructive act or pattern of behavior.
At this point, I might as well put in my two cents.
- I think the President can commit the offense of obstruction of justice
- I think urging Comey to “go easy” on Flynn, and firing him when he didn’t, constitutes obstruction of justice
- I think he can be impeached, and then prosecuted after removal
As the estimable Bette Davis said,
Fasten your seatbelts. It’s going to be a bumpy night.