While Senator Diane Feinstein’s disclosure that “I think what we’re beginning to see is the putting together of a case of obstruction of justice” has encouraged speculation that President Donald Trump might be guilty of obstruction of justice, it’s unlikely that he could be charged with this crime, and the question is probably largely academic, says public interest law professor John Banzhaf.
While there is precedent that deliberate interference with a criminal investigation or prosecution can constitute “obstruction of justice” for the specific purpose of impeachment, it is far from clear that such action, if undertaken by the President, would violate any federal obstruction statute, argues Banzhaf.
For example, the articles of impeachment against President Richard Nixon included a count of obstructing the FBI investigation into the Watergate burglary, including interference with the Special Prosecutor.
The House impeached President Bill Clinton in part based upon allegations of obstruction of justice, and President George H.W. Bush was accused of obstructing an investigation by pardoning former Defense Secretary Casper Weinberger.
So there is some precedent for concluding that such activities may constitute "high crimes and misdemeanors," a term members of Congress may largely define for themselves.
But such conduct does not seem to fall within the definitions of federal obstruction crimes.
As the Congressional Research Service explains: "Obstruction of justice is the frustration of governmental purposes by violence, corruption, destruction of evidence, or deceit. . . . The general federal obstruction of justice provisions are six: 18 U.S.C. 1512 (tampering with federal witnesses), 1513 (retaliating against federal witnesses), 1503 (obstruction of pending federal court proceedings), 1505 (obstruction of pending congressional or federal administrative proceedings), 371 (conspiracy), and contempt. In addition to these, there are a host of other statutes that penalize obstruction by violence, corruption, destruction of evidence, or deceit." None include the termination of investigations by the person overseeing them.
Some experts have tried to compare President Donald Trump's efforts to end the FBI's investigation with the words of the criminal obstruction statute to see if what is known about his activities and motives might fall within its statutory definition.
But there appears to have 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, the FBI director, or others.
This is 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 an 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 very officials in charge to suspend an investigation, decline to prosecute, etc., argues Banzhaf.
Thus, while a president who deliberately falsified or withheld evidence, encouraged perjury, forged documents to implicate someone of a crime, etc. might technically be guilty of conduct proscribed by the statute, any decision by him to terminate an investigation or prosecution may not constitute a crime.
For example, a decision by a U.S. attorney or other prosecutor to discontinue a prosecution - even if for an improper motive such as to protect a friend - may not constitute obstruction, although it may open him to other sanctions. Moreover, since prosecutors enjoy absolute immunity for actions taken in their official capacity, he probably would not be liable criminally or even civilly, suggests Banzhaf.
If that is true of the prosecutor, the low man on the totem pole, the same would seem to apply to any superior who directs - even contrary to well established custom - that a prosecution be discontinued, including the attorney general or even the top law enforcement official, the president.
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 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 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 - who was still part of the executive branch under the president, and subject to termination by his attorney general for cause - 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 the weight of legal authority holds that a sitting president cannot be indicted or tried for any criminal offense while in office, and in addition he can probably pardon himself, because the sole remedy for presidential wrongdoing seems to be 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.