Trump: Can the president obstruct justice?
Did President Trump just “admit to obstruction of justice?” asked Andrew Prokop in Vox.com. After Michael Flynn, Trump’s former national security adviser, pleaded guilty last week to lying to the FBI, Trump couldn’t resist trying to downplay the bombshell news in a tweet. Flynn “had nothing to hide,” Trump tweeted, but had to be fired “because he lied to the Vice President and the FBI.” That was a huge legal error. If Trump knew Flynn had lied to the FBI—a felony—when he fired him back in February, then Trump’s subsequent efforts to make then–FBI Director James Comey drop his investigation of Flynn, and Trump’s eventual firing of Comey, could constitute criminal obstruction of justice. Recognizing the mistake, Trump’s lawyer John Dowd quickly claimed he himself had written the incriminating tweet. That’s not very credible, said The New York Times in an editorial. Even more dubious is Dowd’s subsequent insistence that the president “cannot obstruct justice because he is the chief law enforcement officer.” It’s an “embarrassing and unpersuasive argument,” but expect to hear more of it. Given the overwhelming evidence that Trump tried to shut down the probe of his ties to Russia, his panicked defenders simply have “nothing else to work with.”
Actually, Dowd is right, said Andrew McCarthy in National Review.com. Under our system of government, both the FBI and the Justice Department are “subordinates of the president delegated to exercise his power, not their own.” Trump has “unfettered authority” to shut down investigations, or fire FBI chiefs, as he sees fit. His motive in firing Flynn and Comey doesn’t matter, said Alan Dershowitz in Slate.com. The president cannot be charged with obstruction simply for “firing somebody he’s authorized to fire,” or for exercising any of the other powers explicitly granted to him by the Constitution. Could Congress nonetheless decide to impeach Trump if special counsel Robert Mueller concludes the president committed obstruction? Yes. Impeachment is “part of our system of checks and balances,” with looser criteria than criminal statutes.
Let’s focus on impeachment then, and on history, said Daniel Hemel, also in Slate.com. The articles of impeachment drawn up against Richard Nixon and Bill Clinton both included a charge of obstruction of justice. During Clinton’s impeachment, many current Republican leaders, among them Sen. Mitch McConnell and Attorney General Jeff Sessions, were adamant that a president who obstructed an investigation had to be removed from office. Trump’s lawyers are already trying to head off impeachment, said Renato Mariotti in TheHill.com, which is why they’re hoping to convince congressional Republicans that Trump can’t obstruct justice. But that’s transparently absurd. If a president “could fire anyone in law enforcement who investigated him, without penalty, he would be above the law”—and we’d effectively be living in an autocracy.
Maybe that’s where we’re headed, said Dahlia Lithwick in Slate.com. As Trump further erodes the norms and institutions vital to our democracy with every passing day, Republicans have made it clear that they’ve no interest in holding this president accountable for his lies, his threats against political enemies, his incompetence, or his “openly performed corruption.” It may already be “too late in the slide toward authoritarianism” for fellow Republicans to impeach him for an abstract crime like obstruction of justice. Even if Mueller presents “smoking gun” evidence that Trump and his aides cut an illegal deal with Russia, it might not “bring the Trump train to a stop.” Trump’s base and his enablers in Congress will simply dismiss Mueller’s findings as more “#fakenews.” ■