Is the President Above the Law?

Posted by Dale Eisman on December 4, 2017


Americans who lived through the Nixon years thought that president’s impeachment and resignation put forever to rest the notion that the president is above the law. After all, the first of the three articles of impeachment against Nixon charged that he “obstructed and impeded the administration of justice.”

Obstruction also was part of both impeachment articles returned against President Bill Clinton by the House of Representatives in 1998. Clinton ultimately was acquitted of course, but the principle that the president can be held accountable for obstruction of justice remained intact.

So it’s unsettling this morning to see John Dowd, President Trump’s personal attorney, asserting that because he’s the president, Trump 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 told Axios.com.

Dowd is claiming authorship of a Tweet that came from Trump’s @RealDonaldTrump Twitter account on Saturday and looked a lot like a presidential admission of obstruction of justice. In the message, Trump – or Dowd – said the president fired former National Security Adviser Michael Flynn in February “because he lied to the Vice President and the FBI.”

If Trump wrote that, it suggests he knew about Flynn’s FBI lie – a crime under federal law to which Flynn pleaded guilty last week – when he allegedly asked FBI Director James Comey in March to give Flynn a pass in the bureau’s investigation of alleged Russian involvement in the 2016 election.

That kind of interference, or attempted interference in an ongoing FBI investigation certainly looks like obstruction, though Dowd asserted that the Tweet “did not admit obstruction.”

Dowd insists that the first time Trump knew for a fact that Flynn lied to the FBI was when Flynn was charged last Friday. And he’ll do no more Tweeting on the Trump account, the lawyer promised. “I’m out of the tweeting business. I did not mean to break news,” he said.

Other legal experts suggested Dowd’s claim that Trump cannot obstruct justice is an attempt to draw a distinction between a potential criminal prosecution and a possible move in the Congress to impeach the president.

“It is certainly possible for a president to obstruct justice,” former White House counsel Bob Bauer told Axios. “The case for immunity (from criminal prosecution) has its adherents, but they based their position largely on the consideration that a president subject to prosecution would be unable to perform the duties of the office, a result that they see as constitutionally intolerable.”

While Trump may be out of reach in court, Bauer suggested there’s no question that the House can impeach and the Senate can convict the president for any actions, including obstruction of justice, that lawmakers decide are “high crimes and misdemeanors” under the Constitution.

And at least one senior senator, while saying talk of impeachment is premature, argued over the weekend that Trump increasingly appears vulnerable to charges of obstruction. “I think what we're beginning to see is the putting together of a case of obstruction of justice,” Sen. Dianne Feinstein, D-CA, told NBC.

"I see it in the hyper-frenetic attitude of the White House, the comments every day, the continual tweets. And I see it most importantly in what happened with the firing of Director Comey, and it is my belief that that is directly because he did not agree to ‘lift the cloud’ of the Russia investigation. That’s obstruction of justice.”

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Office: Common Cause National

Issues: Ethics, Voting and Elections

Tags: Executive Ethics

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