BuzzFeed Suborning-Perjury Piece Reconciles Competing Positions
WASHINGTON, D.C. (January 18, 2019) – Until very recently, media reports suggested that attorney general nominee William Barr, many law professors, and other legal scholars believed that a sitting president could not be charged – even after leaving office – with the crime of obstruction of justice, while others maintained that actions such as firing former FBI Director James Comey legally constituted that very crime.
But the claims just made in a BuzzFeed piece seemingly allow these two positions to coalesce, and for legal experts on both sides of this seeming divide to agree: regardless of whether firing someone conducting an investigation, or terminating an investigation, can ever constitute obstruction when performed by a president acting under the authority given to him by the Constitution, he can be guilty of the same charge if his obstruction consists of an action which is inherently criminal, such as suborning perjury.
Many media reports suggested that Barr, law professors Alan Dershowitz, Jonathan Turley, John Banzhaf, and others had claimed that a president cannot be guilty of obstruction of justice because he cannot be said to have obstructed an investigation which he could legally terminate.
But this analysis applied only if a president acted in ways he is empowered to do as the person ultimately responsible for all federal investigations. In other words, 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 investigating employees.
But, as Banzhaf's published analysis noted more than a year ago, "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 [obstruction] statute, any decision by him to simply terminate an investigation or prosecution may not constitute a crime."
Although some have suggested that Barr's original memo concluded that a president is above the law, or at least above the criminal law of obstruction, that's not true. Indeed, his analysis then was remarkably similar to Banzhaf's, as well as to Dershowitz's and Turley's. Here's what Barr wrote.
"Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding's truth-finding function. Thus, for example, if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction. Indeed, the acts of obstruction alleged against Presidents Nixon and Clinton in their respective impeachments were all such "bad acts" involving the impairment of evidence. Enforcing these laws against the President in no way infringes on the President's plenary power over law enforcement because exercising this discretion-such as his complete authority to start or stop a law enforcement proceeding-does not involve commission of any of these inherently wrongful, subversive acts."
Barr reaffirmed that position at his confirmation hearing by agreeing that if the President concealed evidence or "tried to coach somebody not to testimony or testify falsely," he would be guilty; "yes, under an obstruction statute, yes." Also, asked whether persuading anybody to commit perjury would be obstruction of justice, Barr said "yes," adding, "any person who persuades another" would do so.
This new BuzzFeed charge is especially serious, says Banzhaf, since virtually all experts agree that it would constitute the crime of obstruction of justice even when committed by a sitting president, and because it obviously constitutes a "high crime" which is the constitutional standard for impeachment.
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