The victim of the crime was certain the evidence was sufficient, if not overwhelming, to convict the perpetrator. Yet inexplicably, the prosecutor decided not to pursue the charge, filing a nolle prosequi and ending the case. Did she obstruct justice?
Does the answer to the question change based upon whether the motivation was malevolent or benign? It’s a rational basis to distinguish prosecutorial decision-making, and thus comes into play when questioning whether the President of the United States, the nation’s supreme law enforcement officer under Article II of the Constitution, can be indicted for the crime of obstruction if he tried to exercise his constitutional authority for improper purposes.
Trump’s lawyer, John Dowd, asserted that the president cannot, by definition, obstruct justice because he has the supreme authority to decide what offense is to be prosecuted, and thus has the power to express his views on whether a prosecution should be maintained.
On Monday morning, Axios reported that Mr. Trump’s top personal lawyer, John Dowd, said in an interview that the “president cannot obstruct justice because he is the chief law enforcement officer” under the Constitution and “has every right to express his view of any case.”
This will come as news to Congress, which has passed laws criminalizing the obstruction of justice and decided twice in the last four decades that when a president violates those laws he has committed an impeachable offense.
This implicates two very different issues, which have been routinely conflated in the discussion. What Dowd raised was whether the president can commit the crime of obstruction, for which he could be indicted, prosecuted, and if convicted, punished. Can the president be indicted? The Ken Starr memo prepared to justify his indictment of President Bill Clinton argued he could.
The 56-page memo, locked in the National Archives for nearly two decades and obtained by The New York Times under the Freedom of Information Act, amounts to the most thorough government-commissioned analysis rejecting a generally held view that presidents are immune from prosecution while in office.
“It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties,” the Starr office memo concludes. “In this country, no one, even President Clinton, is above the law.”
Much as platitudes like “no man is above the law” are viscerally satisfying, it creates a bit of a problem. Could some rogue prosecutor in Alabama indict a president? Even if a judge tosses it, what would happen when the marshals tried to take the president into custody and the Secret Service took umbrage?
Alan Dershowitz similarly contended that a sitting president cannot be charged.
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.
What other presidents did, obviously, isn’t exactly a substantive rationale. After all, just because one person got away with murder doesn’t make murder okay. That Trump exercised his constitutional authority, and cannot be charged for doing so, seems to be the crux of Dersh’s argument. And, indeed, much of the argument surrounding Trump, most notably the travel ban, involves the execution of clear presidential authority with what is believed to be unsavory, if not unconstitutional, purposes.
But this is where we return to the rational distinction between the president’s constitutional authority and his motives. Certainly Trump can’t go to Fort Knox and covertly stuff gold bars into Melania’s Chanel purse, right? Or order the extrajudicial killing of an American citizen by drone strike? Or maybe the answer lies in the underlying purpose behind the act, and people who hate Trump will attribute a malevolent motive to his conduct, while people who support Trump will rationalize it.
Were Trump’s acts motivated by self-dealing, the desire to conceal his own impropriety by expressing his desire to then-FBI Director Jim Comey to lay off General Mike Flynn, or was he exercising the discretion of the chief law enforcement officer to cut Flynn a break for his service to his nation during his career? The Take Care Clause provides that the president “faithfully execute the laws.”
The Founders didn’t include the word “faithfully” for kicks. But the Supreme Court has never interpreted what the obligation to be “faithful” entails.
That word seems at least to imply a measure of choice, of discretion. What sort of executive implementation of a law passed by Congress is “faithful,” and what would be “unfaithful”? And, by the way, “faithful” to what or to whom? (The records of the Philadelphia convention are not much help in answering such questions; the Take Care Clause was talked about very little there.)
The New York Times doesn’t find any of this troubling.
Any child could tell you the answer: People lie when they know they’ve done something wrong. Mr. Flynn and others in Mr. Trump’s campaign and transition team were secretly trying to undermine United States foreign policy as private citizens — which is not just wrong, but a criminal violation of the Logan Act.
The law, however, is not based on what “any child could tell you,” even if that’s the basis for the Times’ editorial opinion. And whether it’s a violation of the Logan Act, which has never been used against a president-elect despite an inglorious history of sticking their noses into foreign relations before taking the oath, is a dubious proposition.
So does a president get away with it? Not necessarily, and that’s because the Constitution also provides for an “I” word that isn’t indictment.
The known facts are too weak to support any federal prosecution, not to mention one as momentous as indicting a sitting president. But even if Mr. Trump did illegally conspire to improve relations with Russia, his critics are pursuing their quarry down the wrong path. Impeachment — not criminal prosecution — is the tool for a corrupt sitting president.
The Constitution doesn’t give the president a free ride to do as he pleases, to self-deal, to act malevolently, to be unfaithful to the laws. Rather, it provides the mechanism to take a wayward president to task while providing him the latitude and security to execute the duties of office without someone, somewhere, indicting him for something.
For all the drama surrounding the Mueller and congressional investigations, the House can impeach Trump whenever it chooses to do so, and he will then be tried by the Senate. Trump won’t be indicted. He won’t be tried. But he might be impeached. That’s the remedy for a Chief Executive who abused his authority, engaged in corruption or violated his oath.
Mueller is a sideshow. Indictment of a sitting president won’t happen. Unless and until Congress decides to impeach, this is all just fodder to keep cable-news watchers occupied by faithfully watching the talking head who most closely aligns with their bias.