An old adage says that when the facts are against you, argue the law.
President Trump’s personal lawyer seems to be following that strategy. Attorney John Dowd is reportedly arguing that a sitting president cannot obstruct justice as a matter of law.
The statement comes following the guilty plea of former national security advisor Michael T. Flynn, who is cooperating with Special Counsel Robert S. Mueller III in the investigation of possible links between Russia’s efforts to influence the presidential election and the Trump campaign. Flynn may have information about conversations with Trump that could bolster the facts in a case against Trump for obstruction of justice.
Some legal experts have already expressed the view that a sitting president cannot be charged with any criminal offense in court, in the way that any other person can be charged with a crime, because it would be too distracting to perform his official duties as president while also defending himself against criminal charges. This theory is consistent with a Watergate-era legal opinion from the Department of Justice, finding that a sitting president cannot be charged with any crime in the criminal justice system. Instead, when a president is accused of misconduct, the remedy is impeachment.
But this is not what Dowd appears to be saying. According to a report in Axios, Dowd said 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.” In other words, obstruction of justice would be an improper basis even for impeachment because it is legally impossible.
Dowd’s theory seems to be that as chief executive, Trump is in charge of the Department of Justice, which decides which cases to bring. While it is true that the president has authority to exercise executive power, as with any power, he may not do so for an improper purpose. For example, the president has the power to pardon criminal defendants, but he could not pardon someone in exchange for a bribe. Similarly, a president could potentially direct his Justice Department to more aggressively pursue immigration crimes or drug offenses, or to dedicate fewer resources to investigating environmental crimes, but it would still be illegal to interfere with a particular investigation for an improper purpose.
What might constitute an improper purpose? Obstruction of justice occurs when someone “corruptly…obstructs, influences or impedes any official proceeding or attempts to do so,” according to the federal criminal code. The statute further provides that an “official proceeding need not be pending or about to be instituted at the time of the offense.”
There is no clear answer as to whether a president can be impeached for obstructing justice because no one has ever challenged this issue in court, but it seems that abusing power by obstructing justice is the kind of “high crime or misdemeanor” for which impeachment is a potential consequence. Obstruction of justice was the basis for the impeachment articles that were drafted for President Nixon and filed against President Clinton. Contrary to Dowd’s argument, it seems that the precedent has been set to use obstruction of justice as an appropriate basis for impeachment of a president.
Moreover, some legal experts argue even further that impeachment is not the only remedy, and that a president can be charged with a criminal offense in court just like any other citizen. In fact, reports have indicated that Kenneth Starr, when serving as independent counsel in the Whitewater investigation, made this argument with respect to President Clinton.
Under the special counsel regulation, however, Mueller is bound to comply with DOJ policy, and likely would abide by its opinion that sitting presidents cannot be charged with crimes in the criminal justice system. Instead, it seems more likely that if he finds that evidence supports a prosecution for obstruction of justice, he would provide that information in a report to the House Judiciary Committee for consideration of impeachment proceedings.
Of course, even if Trump can commit obstruction of justice as a matter of law, evidence would still have to show that he did so as a matter of fact. First, Mueller would have to show that Trump attempted to interfere with the investigation. Former FBI Director James Comey has testified that Trump asked him to let the Flynn investigation “go.” After Comey refused, Trump fired him to “relieve great pressure,” as Trump told Russians in the Oval Office following the dismissal. Flynn may have information to corroborate Comey’s claim, such as recollections of conversations he had with Trump in which they discussed asking Comey to stop the investigation.
Second, Mueller would have to show that Trump acted “corruptly,” which means that it was done for a bad purpose. Again, Flynn may have information to support this element. The “Statement of Offense” filed along with Flynn’s guilty plea indicates that at least two “senior” members of the trump Transition Team were aware of Flynn’s discussions with the Russian ambassador.
Flynn may be able to provide additional information that Trump sought to end the investigation not only to protect Flynn after he lied to the FBI about the conversation, but also to protect others on his transition team who were involved in communicating with Russia or engaging in other misconduct. The nearer the facts get to showing that Trump was protecting members of his campaign or himself when he allegedly asked Comey to stop the investigation, the closer it seems to proving corrupt intent. In the end, an obstruction of justice case will depend on the facts that Mueller and his team can uncover.
While the rule says that when the facts are against you, argue the law, the corollary to that rule is that when the facts and the law are against you, argue louder.