In a previously secret memo, lawyers for President Donald Trump have argued that he cannot be guilty of the federal crime of obstruction on justice if he acts in his capacity “as the chief law enforcement officer” because “obstructing himself is not a crime.”
Critics counter than “no man is above the law,” but that is a sound bite and slogan, not a legal principle, notes public interest law professor John Banzhaf, who suggests that it is not true, and, even if it were, it does not apply in this situation since some presidential actions could constitute obstruction.
For example, top diplomatic officers from foreign countries have full immunity, as do their deputies and families. This means that they cannot be arrested nor convicted of any crime – including even rape or murder, much less obstruction of justice – and thus are ‘above the law” in every sense of the words.
A better and more appropriate example is a U.S. Senator who is given the authority to vote on the Senate floor by the U.S. Constitution.
If he acts within that authority and votes, it seems clear that he has not committed a crime, even if he acted with so-called “corrupt intent” – e.g., he helped defeat legislation which would have hurt his business interests, or help a romantic rival avoid bankruptcy or even jail, or, in a very close analogy, the legislation would have established an agency which would probably have uncovered his own wrongdoing.
Naturally he can still be guilty if he accepted a bribe to change his vote, because it is then the acceptance of the bribe, not the voting itself, which constitutes a crime.
But if he could be charged with – or even investigated for – alleged obstruction of justice for any questionable Senate votes, it would open the door to threats and even tyranny by any US attorney who disagrees, including political rivals.
Similarly, the U.S. Constitution gives the president overall authority to see that the laws are enforced, and that includes the authority to oversee all federal criminal investigations – even though most presidents have wisely left most decisions regarding criminal investigation to officials at the Department of Justice, and to individual U.S. attorneys.
So if he likewise exercises that constitutional power by doing no more than terminating a investigation, he has not “obstructed” an investigation which he has the unquestioned constitutional authority to terminate.
This would seemingly be true, as it is with senators, even if he acted with so-called “corrupt intent” – e.g., to prevent the discovery of wrongdoing by his real estate business, to punish his political enemies, to generate favorable publicity, or even to protect himself and his reputation.
This inability to be guilty of obstruction simply for directly or indirectly terminating an investigation does not mean that he is “above the law” since he can be guilty of obstructions for actions other than simply exercising his constitutional powers. For examples, a president who destroyed evidence, manufactured false evidence, threatened a witness, convinced a witness to perjure himself, etc. would be guilty of obstruction, since the acts are themselves illegal, and clearly not part of his responsibilities.
Moreover, the President is clearly not “above the law” in other ways. For example, the Supreme Court has ruled that even a sitting president can be sued in a civil law suit. The Constitution also provides that he can be impeached and then removed from office as a result of the impeachment,
While the acts some have labeled obstruction may provide the basis for impeachment for “obstruction,” the Constitution, the language as well as the clear intent of the relevant federal obstruction statutes, and the “clear statement” rule all suggest – as three law professors have concluded – that he would not be guilty of the crime of obstruction of justice, even if he wrongly shut down the investigation.
At least three law professors – Harvard law professor Alan Dershowitz, and law professors Jonathan Turley and John Banzhaf of GWU Law School – have independently concluded that a sitting president cannot be guilty of the criminal charge of obstruction of justice simply for exercising his lawful constitutional powers such as directing investigations and firing employees; although he might be for specific clearly wrongful acts such as fabricating or destroying evidence, blackmailing a witness, etc.
While some have reached this conclusion as a matter of constitutional law, there is a similarly strong argument based simply upon statutory analysis and legal precedent, suggests Banzhaf.
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 very least raise serious constitutional issues.
Many courts, including the U.S. Supreme Court, have held – under 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 such serious constitutional issues unless Congress has unmistakably made clear its intent that it wished to push constitutional boundaries, says Banzhaf.
Thus, even if Dershowitz and others may have read the Constitution too expansively, the president cannot be guilty of the crime of obstruction of justice as a simple matter of statutory interpretation.
If Congress had intended the crime of obstruction to include acts by the president seeking to discontinue and/or even narrow an investigation, even for improper motives, it would have had to have said so in the words of the statute for that construction – which raises major constitutional issues – to have any validity.
While there is precedent that deliberate interference with a criminal investigation or prosecution can constitute “obstruction of justice,” at least 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, Banzhaf argues.
As the impartial Congressional Research Service had previously concluded: “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 of these appear to include the mere termination of criminal investigations by the person actually overseeing them, whether that is the president, the attorney general, or a U.S. attorney in charge of the case.
Some experts have tried to compare 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 clear 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 for presidents, 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 simply by issuing pardons absolving them of criminal liability for any crimes they may have committed. For example, when President Bush pardoned Casper Weinberger to end an investigation which might have led back to him, nobody even suggested the crime of obstruction of justice.
So it’s hard to see how achieving the same result by ordering the discontinuation of a criminal proceeding, directly or by firing an investigator, 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 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 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 or to protect his own business interests – may not constitute obstruction, although it may open him up 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 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 head of the executive branch, and he may have them fired if they disobey 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 crime of obstruction of justice.
In any event, any discussion of potential criminal liability for Trump may be strictly academic, since the weight of legal authority as well as Justice Department policy holds that a sitting president cannot be indicted or tried for any crime while in office, and he could probably pardon himself if necessary.
Moreover and in addition, since any attempt to try Trump – for obstruction of justice or any other crime – could easily create a constitutional crisis far more serious than Watergate, the best if not the sole remedy any for presidential wrongdoing may have to be impeachment, argues Banzhaf.