Yes, Trump can be guilty of obstruction

There is so much to say about John Dowd’s terrible-no-good-very-bad-weekend of legal malpractice.

First, let me address his assertion today that a President cannot commit obstruction of justice. Axios’s Mike Allen reports: “John Dowd, President Trump’s outside lawyer, outlined to me a new and highly controversial defense/theory in the Russia probe: A president cannot be guilty of obstruction of justice. ‘[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,’ Dowd claims.”

John Dowd is right that the President is the chief law enforcement officer, but that does not mean he is above the law. First of all, because the relevant question is impeachment at this stage, Dowd is obscuring a key point: when the Founders gave Congress the power to impeach for “high crimes and misdemeanors,” they intended the power to apply to the abuse of power broadly, even if a regular criminal statute had not been violated.  Some crimes are not high enough to be impeachable, and some acts are not regular statutory crimes but are still impeachable. In firing Comey, Trump has committed both an impeachable high crime and a statutory criminal act under 18 U.S.C. 1512(c)(2).

Moreover, this theory is not new. Nixon said, “When the president does it, that means it is not illegal.” This theory was rejected then, especially when the House Judiciary Committee listed obstruction of justice at the top of its Articles of Impeachment. The Republicans rejected Nixon’s theory again during the Clinton impeachment. Just because the president has a power, that does not mean the president can use that power any way he wants to. The president has a constitutional power to fire and to nominate officers, but if the president received a payment to fire Comey, quid pro quo, or to give his job to Christopher Wray, that would be felony bribery. The president as commander-in-chief has the power to order military strikes, but if his intent was to kill his wife’s lover in a strike, that would be murder. And if the president interferes or impedes an FBI investigation with “corrupt intent,” that’s obstruction of justice under 18 U.S.C. 1512(c)(2), as I’ve written before (and also explained on the Lawrence O’Donnell show The Last Word). Trump has essentially confessed three times to his corrupt intent in firing Comey: on May 10th in the Oval Office, on May 11th to NBC’s Lester Holt, and then in his tweet on Saturday (awareness that Flynn had committed a crime). Thus, Trump indeed obstructed justice by firing Comey, he should be impeached by the House for this “high crime” as abuse of power, convicted by the Senate, and prosecuted for a felony after leaving office.

[UPDATED POINT: It is important to note that our constitution recognizes all kinds of legal limits on the president’s “law enforcement power.” Congress has created a large number of “independent agencies” which enforce the law.

The Saturday tweet is also mystifying.  Trump“>tweeted the following, which I term the “third confession”:

“I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!”

I’ve already mentioned the confessions to NBC’s Lester Holt and in the Oval Office in the day’s after Comey’s firing, in which Trump directly connected the firing to the Russia investigation. Now see my timeline in this Slate piece. Keep in mind that Flynn resigned on Feb. 13. Trump tells Comey to back off of Flynn on Feb. 14. Comey recorded that Trump had said to him that Flynn “hadn’t done anything wrong. He had to let him go because he misled the Vice President.” Misleading the Vice President is not a crime. But lying to the FBI is. If Trump knew Flynn had committed a crime, he attempted to cover up that crime and obstruct justice for a corrupt purpse by intervening on behalf of Flynn to influnce Comey, and then firing Comey.

This additional tweet is a legal disaster for the White House, and reports indicate that they know it. So the new excuse is that Dowd wrote the tweet. Even if Dowd wrote it, the tweet is formally a presidential statement under the President’s name. This is the way many confessions are written: a lawyer writes the confession, and then the defendant signs it. The fact that a letter helped draft this tweet makes it more damning, not less damning, because Trump had the benefit of counsel. It cannot be said to be a spontaneous error, blurting out in error.  Courts treat such statements as more deliberate, more reflective, more aware of legal consequences than when a layperson writes a statement alone.

If Dowd in fact wrote this tweet all by himself, then obviously he would have been fired by Saturday night. He has not been fired. Maybe he should be fired anyway, but this was no rogue tweet by a lawyer-saboteur.

Amazingly enough, on Sunday night, Dowd made this problem even worse. Dowd re-confirmed the damning Trump tweet from Saturday that confessed to obstruction of justice, that Trump understood Flynn had committed a crime when he fired Comey:

“Trump’s personal lawyer [Dowd] said on Sunday that the president knew in late January that then-national security adviser Michael Flynn had probably given FBI agents the same inaccurate account he provided to Vice President Pence about a call with the Russian ambassador.”

Dowd is confirming the key fact: Trump had reason to believe Flynn had committed a felony when he was trying influence the FBI investigation. The only way Trump’s defense can claw back from this particular confession is to prove with some kind of contemporaneous notes, documents, or corroboration that Trump did not understand likely Flynn’s crime. It is highly unlikely that any such explicit document or notes exist. So essentially, the only other defenses are: Dowd hacked Trump’s twitter account, Dowd is a secret Democratic operative, Dowd is lying, and he has committed gross legal malpratice (well, he basically has, but only by being seemingly too truthful).

Or Trump’s counsel would have to argue later that President Trump, as a legal matter, was mentally incompetent when he wrote that tweet. I am not being cheeky or snide. Those are, more or less, the only defenses available to undo the third confession.

Keep in mind, the two previous confessions corroborate this third confession, and you can’t blame Dowd for those. And the Holt and the Oval Office confessions were immediately after the firing. So there really is no way to claw back this Third Confession (TM).  Like many who sign up for this Faustian/Trumpian bargain to help this administration, Dowd will never recover his reputation. Ever. And in all likelihood, Trump will have a hard time recovering as well, now that Mueller has a third confession.


Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

3 thoughts on “Yes, Trump can be guilty of obstruction”

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