In a little noticed answer, former FBI Director James Comey suggested that president Donald Trump could not be guilty of the crime of obstruction of justice – even if he had ordered rather than simply suggested an end to the investigation – because he has the authority under the Constitution to terminate it in at least two ways, argues public interest law professor John Banzhaf.

James Comey Obstruction Of Justice Trump
By Federal Bureau of Investigation [Public domain], via Wikimedia Commons
In response to questions from Senator James Lankford R-OK), Comey conceded the Trump, as president, “has the legal authority” to terminate any investigation by issuing a “direct order” “through the attorney general or issue it directly to me.” So it’s hard to see how doing something, indirectly by hints or suggestions, rather than directly through a clear order, could be a crime for the President.

Numerous experts have tried to compare Trump’s efforts to end the FBI’s investigation with the words of the federal criminal obstruction statute to see if what is already known – and what came to light in today’s hearing – might fall within its statutory definition.

But there has been little if any focus on the unique authority of the president to terminate criminal investigations by giving direct orders to subordinates, including his attorney general, FBI director, or others; a power which might take any such orders – direct, indirect, or even those by implication or suggestion – outside the purview of the criminal obstruction of justice law, says Banzhaf, who played a role involving special prosecutors to investigate two different presidents.

Moreover, any president has the unquestioned authority to terminate any criminal investigation concerning any one of more individuals by simply issuing a pardon – as Ford did for Nixon – absolving them of criminal liability for any crimes they may have committed, without specifying them.

Both the words and the intent of the federal obstruction of justice statute appear to apply primarily to outsiders seeking to interfere with the investigation and prosecutorial process being conducted by authorized governmental officials, not necessarily to decisions by those officials in charge to suspend an investigation, decline to prosecute, etc., argues Banzhaf. For this reason,
any decision by him to simply terminate an investigation or prosecution may not constitute a crime.

That’s why, in addressing the unique statute which provided for the appointment of a special prosecutor, the Supreme Court stressed the constitutional imperative that federal investigations and prosecutions must be under the control of the president. Those conducting such investigations are therefore subject to his control as the head of the executive branch, and he may fire them if they disobey his orders.

Indeed, this is exactly what happened in the “Saturday Night Massacre” where President Richard Nixon used his firing authority to terminate part of an investigation to which he had objected.

Although this action had disastrous political repercussions, and led to a unique statute which would permit the appointment of a somewhat independent special prosecutor, Nixon’s firings themselves would not seem to constitute the federal crime of obstruction of justice.

In any event, any discussion of potential criminal liability for Trump may constitute much sound and fury signifying nothing, since it appears that a sitting president cannot be indicted or tried for any criminal offense while in office, and that the sole remedy for presidential wrongdoing is impeachment. As to this, while some maintain that a ground for impeachment is anything Congress decides it is, there is in addition substantial precedent for including obstruction of justice.