Can a President obstruct Justice? It might not matter.

John Dowd, an attorney for President Donald Trump told Axios’ Mike Allen 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.”

Dowd was defending President Trump’s tweet over the weekend — which Dowd says he wrote — that cited Michael Flynn’s lying to the FBI as a reason for firing him.

“I had to fire General Flynn because he lied to the Vice President and the FBI,” the Saturday tweet from Trump’s @realDonaldTrump read, which attorney John Dowd yesterday claimed he wrote. “He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!”

The tweet turned out to be problematic because it would establish that Trump urged Comey to stop his investigation into Flynn knowing Flynn had committed a Federal crime. This would bolster the case for obstruction of justice against the President. Dowd now says he made a mistake.

The suggestion that a President is above the law seems absurd. President Richard Nixon argued that “when the President does it, it’s not illegal.” But, Nixon and Dowd’s point is not without merit. In the unique case of a President accused of obstructing justice in the exercise of his constitutional powers, the answer is at least muddled. The Federal criminal statute defines obstruction of justice as:

“Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress” (18 U.S.C. § 1505)

A President has constitutional authority over the executive departments, including the Justice Department and FBI. Firing FBI Director James Comey was clearly within his power. As Allen Dershowitz, a Harvard University law professor argued, “[w]hen the president asked the director of the F.B.I. to drop its investigation into Michael Flynn, the former national security adviser, or fired James Comey from the F.B.I., or provided classified information to the Russians, he was acting within his constitutional powers.”

But, as Dershowitz acknowledges, Presidents most certainly can commit obstruction of justice. Asking people to lie, bribery, and destroying evidence would all in Dershowitz’s view be obstruction of justice. “For obstruction of justice by the president,” Dershowitz says, “you need clearly illegal acts.” But, if the President acted “corruptly” in firing Comey, it arguably could transform something that is constitutionally permissible into an illegal act. Both positions are debatable.

Criminal Prosecutions Versus Impeachment

There is an important distinction between criminal prosecution and impeachment. Most legal scholars agree that a sitting President is not subject to criminal prosecution. A President can only be held accountable through the impeachment process and the ballot box. Criminal prosecution would only be possible after he left office.

Obstruction of justice was among the impeachment counts against President Richard Nixon, but they were related to other clearly illegal acts and he resigned before a Senate trial could consider the matter. Still, impeachment is an inherently political process and there is only one loosely defined impeachable offense: “high crimes and misdemeanors.” The Constitution offers no further guidance on what qualifies as a “high crime” or “misdemeanor.” The Constitution leaves it to the Congress to decide what that means.

As a legal question, whether or not a President can or cannot obstruct Justice may not prove all that important in the context of impeachment. But, it may be relevant as a political one.

President Trump continues to retain very strong support among Republicans, most of whom give every indication that they will continue to support him given even the thinnest of defenses. Most members of Congress are in safe seats. But support for impeachment could make them vulnerable to primary challenges from within their own party. This means that effectively, the standard for impeachment is what GOP members of Congress can convince primary voters warrants it.

“Given the resiliency of Trump’s core support, this is a very high bar indeed. Whatever the legality of Trump’s actions under the criminal statutes, obstruction of justice probably doesn’t clear it.”

Given the resiliency of Trump’s core support, this is a very high bar indeed. Whatever the legality of Trump’s actions under the criminal statutes, obstruction of justice probably doesn’t clear it. Until Special Counsel Robert Mueller produces concrete evidence that President Trump was complicit in Russia’s meddling in the 2016 election, impeachment seems unlikely. And even then it wouldn’t be certain.

Whether John Dowd and Allen Dershowitz are right or wrong on the legal merits, providing Trump supporters a marginally plausible defense of the President’s actions may prove a winning argument all the same.

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