Las Vegas Sun

March 28, 2024

Analysis:

Claim about obstruction of justice gets little traction among scholars

Forty years ago, former President Richard Nixon famously told interviewer David Frost, when asked whether a president can order an illegal act in the nation’s best interests, “Well, when the president does it, that means it is not illegal.”

President Donald Trump’s personal lawyer, John Dowd, didn’t go quite that far last Monday in talking to NBC News about whether Trump’s firing of former FBI Director James Comey could be considered obstruction of justice, as an attempt to derail the investigation of Russian involvement in last year’s presidential election. But he came close.

“The president cannot obstruct justice because he is the chief law enforcement officer” under the Constitution, Dowd said, adding that Trump “has every right to express his view of any case.”

Dowd didn’t specify a case, but seemed to be referring to Trump’s tweet in which he said one reason he had fired his national security adviser, Michael Flynn, was that Flynn lied to the FBI about his Russian contacts, something Flynn has now admitted in his guilty plea to criminal charges.

The tweet, which Dowd claimed to have drafted, could bolster a case for obstruction of justice by showing Trump knew Flynn was breaking the law when he allegedly asked Comey to end his investigation of Flynn.

Dowd’s constitutional citation last Monday was to Article II, which grants the president “executive power” over federal agencies, including law enforcement, as well as the obligation to “take care that the laws be faithfully executed.”

But there appears to be little support among legal analysts for the view that a president who corruptly interferes with an investigation of his administration would be immune from charges of obstructing justice.

“That would mean that if the police were corrupt, you could never investigate the chief of police,” said Hadar Aviram, a professor of constitutional law at the University of California, Hastings College of the Law in San Francisco. “The law enforcement system is not the private police of the president. It belongs to all of us.”

Commentators noted that the congressional impeachment charges against both Nixon and President Bill Clinton included obstruction of justice, Nixon for trying to shut down an FBI investigation of Watergate and other administration misdeeds, and Clinton for allegedly trying to conceal his relationship with former White House intern Monica Lewinsky.

“It’s true that the president is head of the executive branch and has the lawful power to terminate employees of the executive branch,” said Lisa Kern Griffin, a Duke University law professor. “But if he does it with the corrupt intent to impede an investigation, he commits obstruction.”

And more than one analyst likened Dowd’s claim of presidential immunity to Nixon’s much-derided remarks to Frost in May 1977, nearly three years after he resigned in the face of virtually certain impeachment and removal from office.

“It’s a claim the country rejected when Nixon made it, and the country should reject it now,” said David Sklansky, a Stanford criminal law professor. “No one should be above the law and no one should be free to obstruct justice, including the president.”

Allegations that Trump obstructed justice center on his firing of Comey on May 9, followed two days later by the president’s statement to a television interviewer that he had been thinking about the “Russia thing” at the time of the dismissal.

Comey testified to Congress in June that Trump had fired him because of the investigation into possible Russian collusion with Trump’s campaign, and that Trump had told him to leave Michael Flynn, the president’s former national security adviser, out of the investigation.

This month, Flynn pleaded guilty to lying to the FBI about his meetings with Russia’s U.S. ambassador, which included plans by the incoming Trump administration to ease U.S. sanctions on Russia, and agreed to cooperate with special counsel Robert Mueller in his investigation of the administration.

Trump had previously said he fired Flynn for misleading Vice President Mike Pence about his talks with the ambassador. His tweet following Flynn’s guilty plea extended his reason for the firing to his knowledge that Flynn had lied to the FBI — suggesting Trump was aware of Flynn’s lawbreaking when he allegedly told Comey to drop the former national security aide from his investigation.

Not all legal analysts agree that the Comey firing, and the latest revelations about Flynn, could constitute obstruction of justice.

“You cannot charge a president with obstruction of justice for exercising his constitutional right to fire Comey and his constitutional authority to tell the Justice Department who to investigate, who not to investigate,” Alan Dershowitz, a Harvard law professor and constitutional scholar, told Fox News Channel last Monday.

“For obstruction of justice by the president, you need clearly illegal acts,” Dershowitz said.

A different assessment came from Robert Weisberg, a Stanford law professor and, along with Sklansky, a co-director of the law school’s Criminal Justice Center.

“In a sense, the president is the chief prosecutor, and prosecutors can be allowed discretion not to prosecute,” Weisberg said. But that doesn’t mean, he said, that they can “exercise that discretion with a corrupt intent.”