And the answer is . . . no one knows.
The president believes he is above the law. That’s the takeaway from the confidential 20-page memo sent by President Trump’s lawyers to the special counsel, Robert Mueller, published over the weekend by The Times. And it’s the same sentiment that Rudy Giuliani expressed on Sunday when he suggested that Mr. Trump has the power to pardon himself.
The long and dubiously artful letter by John Dowd and Jay Sekulow on behalf of their client isn’t likely to persuade Special Counsel Robert Mueller of much of anything. It will play to its tribe and be ridiculed by the other tribe.
The central claim of the legal memorandum is that it is impossible for the president to illegally obstruct any aspect of the investigation into Russia’s election meddling. That’s because, as president, Mr. Trump has the constitutional power to terminate the inquiry or pardon his way out of it. Therefore — and this is the key and indefensible point — he cannot obstruct justice by exercising this authority “no matter his motivation.”
Harry Litman, former United States Attorney for the Western District of Pennsylvania under President Bill Clinton, argues that corrupt intent is what distinguishes the exercise of presidential authority from a constitutional power to obstruction of justice.
No tenable account of executive power holds that a president’s purposes in exercising powers accorded under Article II, “to take Care that the Laws be faithfully executed,” have no import. If it were otherwise — if the president had the authority to use his constitutional powers for any reason — it would follow that he could accept a bribe for doing an official act, or, more saliently, extend a pardon to keep a witness from testifying. This would very clearly violate the maxim that the president is not above the law.
Except there is no such legal doctrine that “the president is not above the law.” It’s a platitude, the sort of fortune cookie wisdom that we latch onto to fill the gaps in actual law. And in this case, it’s not even the platitude, which is “no man is above the law.” It might seem that Trump must be included, but that’s the question. Does the president violate the law by the exercise of discretion afforded by the Constitution if done with corrupt intent?
Critics counter than “no man is above the law,” but that is a sound bite and slogan, not a legal principle, notes public interest law professor John Banzhaf, who suggests that it is not true, and, even if it were, it does not apply in this situation since some presidential actions could constitute obstruction.
For example, top diplomatic officers from foreign countries have full immunity, as do their deputies and families. This means that they cannot be arrested nor convicted of any crime – including even rape or murder, much less obstruction of justice – and thus are ‘above the law” in every sense of the words.
Well, that’s something of a special situation, given the implications for international relations. So the platitude isn’t a trusim, but Trump is no diplomat from a foreign nation.
A better and more appropriate example is a U.S. Senator who is given the authority to vote on the Senate floor by the U.S. Constitution.
If he acts within that authority and votes, it seems clear that he has not committed a crime, even if he acted with so-called “corrupt intent” – e.g., he helped defeat legislation which would have hurt his business interests, or help a romantic rival avoid bankruptcy or even jail, or, in a very close analogy, the legislation would have established an agency which would probably have uncovered his own wrongdoing.
Would it be a stretch to believe that elected representatives act with corrupt intent on occasion, and that we don’t blink an eye about it? Well, sure, but then we don’t obsess over them as we do over the president, so just because they got away with it doesn’t mean Trump should.
But does any of this mean the president is subject to indictment or prosecution, rather than impeachment for his failure to “take care”? Who knows?
We are deep into uncharted waters here. It’s not that we haven’t touched the edges of the shoreline in the past, but there has never been an answer to the myriad questions raised by the scenario at issue. There are arguments for and against. There are platitudes aplenty. There are certainly very passionate views of right and wrong. None of these answer the question.
Although this action had disastrous political repercussions, and led to a unique statute which would permit the appointment of a somewhat independent special prosecutor – who was still part of the executive branch under the president, and subject to presidential termination indirectly by his attorney general for cause – Nixon’s firings themselves would not seem to constitute the crime of obstruction of justice.
In any event, any discussion of potential criminal liability for Trump may be strictly academic, since the weight of legal authority as well as Justice Department policy holds that a sitting president cannot be indicted or tried for any crime while in office, and he could probably pardon himself if necessary.
We may well end up with an answer to the question of criminal culpability for a president, even if for obstruction rather than the elusive crime of “collusion” that precipitated this mess, but at the moment, this is all bluster. There is no legal “answer” to these questions, just arguments. You can believe whatever you want, but it doesn’t change the fact that platitudes aren’t law no matter how easily they fit into a twit or a New York Times op-ed.