John L. Micek
Originally published Thursday, December 7, 2017 at 05:59a.m.
Hey, did you know that President Donald Trump can’t be found guilty of obstruction of justice?
Yeah, me neither.
Thank goodness that White House lawyer John Dowd came along to clear that up for us all, and, in the process, rip a hole in the time-space continuum, dropping us into some parallel universe where we’re actually ruled by Mad King Donald, and not a democratically elected executive who’s subject to the same set of laws as the rest of us.
In case you missed it, the utterly novel legal interpretation that Dowd provided to Axios and NBC News came in response to Trump’s tweeting last weekend that he knew that former national security adviser Michael Flynn had lied to the FBI about his contacts with Russian Ambassador Sergey Kislyak.
Legal experts quite sensibly suggested that if Trump knew Flynn lied to the FBI and then didn’t tell the FBI about it, such an admission might increase his exposure to the kind of obstruction of justice that’s at the center of special counsel Robert Mueller’s investigation.
But not Dowd.
Speaking to Axios and NBC, Dowd theorized that “the president cannot obstruct justice because he is the chief law enforcement under [Article II of the Constitution) and has every right to express his view of any case,” The Post reported.
Except there are two problems with that theory. One of them is former President Bill Clinton. The other is President Richard Nixon.
During impeachment proceedings in 1999, then-U.S. Sen. Jeff Sessions of Alabama argued that Clinton had to be removed from office because he obstructed justice in the course of the investigation into his affair with Monica Lewinsky.
“The facts are disturbing and compelling on the President’s intent to obstruct justice,” Sessions said at the time, Politico reported, citing remarks in the congressional record.
Twenty-five years earlier, as his administration crumbled during the Watergate scandal, Nixon famously claimed that “when the president does it, that means it is not illegal.”
Except, of course, that the articles of impeachment lodged against Nixon included allegations of obstruction. Nixon, you’ll recall, resigned before he could be impeached.
Norm Eisen, a former Obama administration ethics official and the co-author of a Brookings Institution report looking at the history of presidential obstruction of justice, told the Washington Post this:
“There’s a long line of cases holding that when a government official exercises an otherwise legal authority with corrupt intent, they can be prosecuted for obstruction. It flows from the notion that no person is above the law,” he said.
That seems pretty cut and dried.
Dowd’s theory, which was first advanced by Harvard law scholar Alan Dershowitz, isn’t part of the White House’s official legal strategy, according to lawyer Ty Cobb, who is overseeing all things Russia.
Dershowitz has argued that Trump can’t be charged with obstruction because firing Comey and telling the FBI who - and who not – to investigate is part of the job description.
“Throughout United States history – from Presidents Adams to Jefferson to Lincoln to Roosevelt to Kennedy to Obama - presidents have directed (not merely requested) the Justice Department to investigate, prosecute (or not prosecute) specific individuals or categories of individuals,” Dershowitz wrote in a June op-Ed for The Washington Examiner.
Dershowitz went on to note that “it is only recently that the tradition of an independent Justice Department and FBI has emerged. But traditions, even salutary ones, cannot form the basis of a criminal charge. It would be far better if our constitution provided for prosecutors who were not part of the executive branch, which is under the direction of the president.”
Which is all well and good. But to paraphrase another former Washington official, you make your case with the laws and prosecutors you have, not the laws and prosecutors you wish you had.
An independent Justice Department is far preferable to one directed by a politically motivated executive who might be tempted to overstep his authority to tick names off his personal enemies list.
And that’s true no matter who does it – Democrat or Republican.
Our system is reliant on the belief that we’re equally accountable in the eyes of the law. And that no one – not even the president of the United States – stands above it.