On Monday, President Donald Trump’s personal attorney made a pointed argument in a media interview that a President can’t be charged with obstructing justice. On further review, that statement and the opinions of legal experts about it are under some close scrutiny.
John Dowd, the attorney in question, spoke with Mike Allen of Axios about a Twitter message from the President’s account that indicated Trump knew about former adviser Michael Flynn’s potential legal problems before the President allegedly asked then-FBI Director James Comey to drop an investigation into Flynn.
Allen had two quotes from Dowd in his story. One is about the Twitter message: “The tweet did not admit obstruction. That is an ignorant and arrogant assertion,” Allen quotes from Dowd. The second quote, however, has legal scholars debating its exact meaning. “[The] President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution's Article II] and has every right to express his view of any case," Allen attributes to Dowd.
Around the same time as Allen’s story was published, legal expert Alan Dershowitz was on Fox News, and he gave his own opinion about why obstruction claims related to Trump’s tweet and the Comey firing were without merit.
“You cannot charge a president with obstruction of justice for exercising his constitutional power the fire [former FBI director James] Comey and his constitutional authority to tell the Justice Department who to investigate, who not to investigate,” Dershowitz said.
Not everyone in the community of legal scholars who speaks with the press, gives interviews, or uses social media agreed with Dowd and Dershowitz. The points of disagreement include the questions about if a President can be charged with obstruction in a criminal court; if the House can bring impeachment charges based on obstruction; and if the President has a constitutional exclusion in the Comey-Flynn case since he is the head of the Executive Branch.
The website Vox, for example, has statements from 13 legal pundits that a President could face obstruction charges in various ways.
Some of the arguments are nuanced. “Some wish the Constitution to be read that way to assure that an executive is not rendered unable to perform the duties of his office, and they argue that as chief law enforcement officer he cannot prosecute himself and that impeachment is the sole remedy for felonious conduct,” explained Bob Bauer from New York University. “But this is a complicated and wishful construction, and cutting against it is the more fundamental proposition that the president, who is responsible for the faithful execution of the law, cannot put himself above it.”
Others said the Dowd statement was blatantly wrong. “As a White House lawyer under two Presidents, I can tell you that Counsel’s Office operates on the assumption that the President could obstruct justice,” said Savannah Law School’s Andy Wright. “The President’s role as chief executive may complicate what motivations are ‘corrupt’ for an obstruction of justice statute. But Dowd’s argument is the last refuge of a scoundrel, and it would lead us down a path to despotism.”
The Washington Post’s quote round-up had a more diverse set of opinions.
Daniel P. Franklin of Georgia State University offered a theory that a President can’t obstruct justice while he is acting in his official role as chief executive, but he could do so in other ways outside of that role. “The words of a President, not expressed under oath and not in the service of obstruction (for example, ordering subordinates to commit obstruction), are just words and not actions and, therefore, are not a crime,” Franklin said.
George Washington University’s Jonathan Turley didn’t exactly agree with Franklin and said a President “has the power to fire an attorney general, but he can commit a crime if he does so to block an investigation into alleged crimes.”
A broader question in the debate was the venue of the possible obstruction charges: a criminal court or Congress? Dershowitz said on Fox News neither path was acceptable: “I think if Congress ever were to charge him with obstruction of justice for exercising his constitutional authority under Article II, we’d have a constitutional crisis.”
Two scholars from the University of Chicago, Daniel Jacob Hemel and Eric A. Posner, wrote about these scenarios in a July law review article. “The President is vested with ‘executive power,’ which includes the power to control federal law enforcement. A possible view is that the statutes do not apply to the President because if they did they would violate the president’s constitutional power,” they argued.
Specifically, Hemel and Posner cited arguments made by the late Justice Antonin Scalia about the need for the executive to function as the unity head of the federal law-enforcement system. “Governmental investigation and prosecution of crimes is a quintessentially executive function,” Scalia wrote in his dissent in a 1987 Supreme Court decision, Morrison v. Olson.
But Hemel and Posner also cited the constitutional conflict with the concept that no person is above the law, most famously stated in the Supreme Court’s decision that forced President Richard Nixon to release the Watergate tapes. The impeachment process, therefore, is designed to handle these scenarios.
“The founders recognized this conundrum and sought to address it by granting Congress the impeachment power. Congress was not supposed to impeach a president merely because of political disagreement,” Hemel and Posner said back in July.
The professors concluded there were special cases and instances where obstruction charges would apply to a President. “The President ought not stand above the criminal law. But when laws are vague and law enforcement authorities are independent, the risk on the opposite side is that all Presidents will permanently be under investigation even when they do nothing wrong.”
Scott Bomboy is the editor in chief of the National Constitution Center.
