Donald Trump’s personal lawyer, John Dowd, has opined that
it is impossible for the President of the United States to obstruct justice. [1]
Superficially considered, and depending on what one means by “obstruction of
justice,” that idea isn’t as far out as it may sound.
The operative constitutional provision is Section 3 of
Article II, which in pertinent part provides that the president is to “take
Care that the Laws be faithfully executed…,” [2] making him the top
law enforcement officer of the United States. But he’s more than just your local
chief of police writ large. He is, all by himself, a co-equal branch of
government, along with Congress and the Supreme Court. So he is not only in
charge of enforcing the laws of the United States, he is in charge of how he
goes about it. He has no supervisor.
Now let’s suppose he has a discussion with the FBI director,
let’s call him “James Comey,” wherein he tells Mr. Comey to be lenient in his
investigation of a criminal suspect, whom we will refer to as “then-national
security adviser Michael Flynn.” Your humble servant will concede mystification
on how one goes about being lenient in an investigation, but we will assume
that the president’s request made sense. Investigating crime is part of
executing the laws, exactly the sort of thing the president is in charge of.
And since he is in charge of it, he gets to decide how to do it, even if his
instructions will leave native English speakers scratching their heads.
But that doesn’t mean that it is impossible for the
president to commit the crime of obstruction of justice. Yes, the president may
direct criminal investigations when he’s not busy insulting the North Korean
dictator on Twitter, but he may not violate the criminal statutes of the United
States.
For example, the president may not intimidate someone in
order to keep him from telling a federal judge about a crime, a course of
action whereby he could win for himself up to 20 years in prison. (18 U.S.
Code, §1512(b)(3)) [3]
The president may not destroy documents so that they won’t be available in
official proceedings (18 U.S. Code §1512(c)(1)), another 20 year offense. And
there are many such things that a president may not do.
So when the president’s lawyer says that a president cannot
commit obstruction of justice, it is easy to see what he means. But it is also
clear that he didn’t think his position through very carefully.
