Exercising Constitutional Authority to End FBI Investigation Can’t Be a Crime
WASHINGTON, D.C. (June 9, 2017): Two well known law professors – both generally thought of as more liberal than conservative, and clearly not supporters of President Donald Trump and his policies – have nevertheless independently concluded that Trump would not be guilty of the crime of obstruction of justice, even if he had clearly and ambiguously ordered then-Director James Comey to terminate or scale back an FBI investigation, instead of just suggesting it.
The reason is simple, says public interest law professor John Banzhaf, who played a role involving special prosecutors to investigate two different presidents. The Constitution gives the president the ultimate authority to direct all investigations conducted by the executive branch – whether by the FBI, IRS, FDA, etc. – including the authority to terminate or limit any investigations. So his exercise of this constitutional power, whether directly or by dropping strong hints, could not constitute a crime.
Law Professor Alan Dershowitz agreed completely, writing after the dramatic hearing was over that: “Comey confirmed that under our Constitution, the president has the authority to direct the FBI to stop investigating any individual. I paraphrase, because the transcript is not yet available: the president can, in theory, decide who to investigate, who to stop investigating, who to prosecute and who not to prosecute. The president is the head of the unified executive branch of government, and the Justice Department and the FBI work under him and he may order them to do what he wishes.”
Comey had told Senator Lankford that the President, “has the legal authority” to terminate any investigation by issuing a “direct order . . . through the attorney general or issue it directly to me.”
Dershowitz also drew upon history, saying “As I have long argued, and as Comey confirmed in his written statement, our history shows that many presidents – from Adams to Jefferson, to Lincoln, to Roosevelt, to Kennedy, to Bush 1, and to Obama – have directed the Justice Department with regard to ongoing investigations.”
Banzhaf put it slightly differently, writing “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 – especially the president – to suspend an investigation, decline to prosecute, etc. For this reason, simply terminating an investigation or prosecution may not constitute a crime.”
He noted that the U.S. Supreme Court, in approving the appointment of a special prosecutor under the then-existing federal statute, stressed that even this prosecutor was part of the executive branch under the ultimate authority of the president, and that he could be fired, at least for cause.
Dershowitz concluded: “now that even former Director Comey has acknowledged that the Constitution would permit the president to direct the Justice Department and the FBI in this matter, let us put the issue of obstruction of justice behind us once and for all.”
Meanwhile, Banzhaf said: “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.”