Donald Trump’s attorney John Dowd has sided with Harvard Law professor Alan Dershowitz in asserting that, as a matter of constitutional law, a president cannot be guilty of the crime of obstruction of justice, even though such a claim might support an impeachment action.
But even assuming that the Constitution does not fully protect the president, it is clear than any construction of “obstruction of justice” to include a president ordering – directly or indirectly, and regardless of motive – the discontinuance of a criminal proceeding does at least raise serious constitutional issues.
Many courts, including the U.S. Supreme Court, have held - under what is sometimes called the "clear statement rule" - that statutes which are not completely clear on their face should not be interpreted in such a way as to raise serious constitutional issues unless Congress has unmistakably made clear its intent that it wished to push constitutional boundaries, says public interest law professor John Banzhaf.
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Thus, even if Dowd and Dershowitz have read the Constitution too expansively, the president cannot be guilty of obstruction of justice as a simple matter of statutory interpretation.
While there is precedent that deliberate interference with a criminal investigation or prosecution can constitute "obstruction of justice" for the purposes of impeachment, it is far from clear that such action, if undertaken by the President, would violate any federal obstruction statute. Such conduct does not seem to fall within the definitions of federal obstruction crimes, he argues.
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 actually 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 legal authority of any president to terminate criminal investigations by giving direct orders or even indirect hints 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.
Indeed, Dershowitz has gone even further, arguing, "You cannot charge a president with obstruction of justice for exercising his constitutional power to fire Comey and his constitutional authority to tell the Justice Department who to investigate, who not to investigate. That's what Thomas Jefferson did, that's what Lincoln did, that's what Roosevelt did. We have precedents that clearly establish that," he said.
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. So it's hard to see how achieving the same result by ordering the discontinuation of a criminal proceeding would be so much more serious as to constitute a felony.
Both the words and the intent of the federal obstruction of justice statute appear to apply primarily to outsiders using clearly improper methods (e.g., bribery) 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 use their lawful authority to suspend an investigation, decline to prosecute, etc.
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 simply 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 government official 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 upholding in Morrison v. Olson the unique statute which provided for the appointment of an independent counsel, the Supreme Court stressed the constitutional imperative that federal prosecutions must be under the control of the president who is ultimately responsible for law enforcement.
Those conducting such investigations must therefore be subject to his control as the head of the executive branch, and he may fire them if they disobey his orders, including orders to stop investigating.
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 presidential termination indirectly 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 be academic, since the weight of legal authority holds that a sitting president cannot be indicted or tried for any crime while in office, and he can probably pardon himself, because the sole remedy for presidential wrongdoing is impeachment.