Trump's Legal Defenders Are Arguing For Autocracy

Yes, a president can obstruct justice. No, a president can't pardon himself.
The Washington Post via Getty Images

Enraged by an FBI search of his lawyer’s offices, President Donald Trump accuses his own Justice Department of conducting a “witch hunt” and an “attack on our country,” escalating his threats to fire special counsel Robert Mueller.

This vituperation was predictable. But what makes the president’s threat especially ominous is the ammunition provided him by a chorus of legal enablers ― the lawyers, media pundits and elected Republicans who would invest the president with an autocrat’s immunity. Their pretense of high principle is as bogus as it is insidious.

Mueller’s investigation seeks to determine whether Trump and/or his associates bartered America’s interests in exchange for legal or financial help from Russia; and whether Trump abused the power of his office to suppress the truth. But its ultimate purpose is to preserve American democracy by protecting the rule of law.

Against this imperative Trump’s defenders deploy a grab bag of contrivances that share three defining characteristics: They are legally threadbare; intellectually shabby; and, in a constitutional democracy, morally bankrupt. Their overarching purpose is to supply Trump with a pretext for firing Mueller while avoiding impeachment and providing supine Republicans in Congress with an excuse for letting him sabotage our laws and Constitution.

To start, they argue that ― in essence ― Trump has absolute power over the administration of justice, and that Mueller’s appointment by Trump’s deputy attorney general was illegitimate. Just the opposite is true.

Upholding an earlier law providing for the appointment of an independent counsel such as Mueller, the Supreme Court cited the necessity of avoiding potential conflicts of interest “when the executive branch is called upon to investigate its own high-ranking officers.” There could be no clearer case than Trump ― both he and Attorney General Jeff Sessions were under investigation, an obvious conflict noted by Sessions in recusing himself.

“Trump’s defenders are stirring up partisan animus by contorting the law and slandering a lifelong Republican of unblemished integrity.”

Equally dishonest is their insistence that nothing Trump did is, or could have been, a crime ― and therefore that Mueller is politicizing criminal law in order to gin up a case. In truth, Trump’s defenders are stirring up partisan animus by contorting the law and slandering a lifelong Republican of unblemished integrity.

Take collusion. The threshold question under investigation is whether Trump or his campaign ― in lay parlance ― “colluded” with Russia to influence the 2016 election.

Trump’s apologists play the semantic game of insisting, in the words of his lawyer Jay Sekulow, that “there is no crime of collusion.” Taken literally, the word “collusion” does not appear in the federal criminal code. But “conspiracy” certainly does.

One federal statute outlaws a conspiracy to defraud the United States “for the purpose of impairing, obstructing or defeating [its] lawful functions...” Another covers conspiracies to commit any federal crime ― even if that crime was never committed.

As an example, both statutes could cover a conversation between Trump associates and Russia about using stolen emails to influence the 2016 election. Logically, this is indistinguishable from conspiring to stuff ballot boxes, defrauding the United States in its conduct of elections.

Other potential conspiracies include collaboration between Russian cyber-warriors and Trump’s campaign to target voters in key states; discussions about gutting America’s sanctions against Russia in exchange for secret Russian assistance; and a common effort to integrate Moscow’s illegal interference into Trump’s campaign strategy.

Based on facts already known, all of the above are plausible ― and none ruled out.

These scenarios then bring several other federal statutes into play. The campaign finance laws bar accepting anything “of value” from a foreign source. One thinks of money. But Russia’s gift of hacked emails that damaged Hillary Clinton were, for Trump’s campaign, invaluable.

The Logan Act bars an American citizen “without authority” ― like candidate or President-elect Trump ― from dealing with foreign officials to “defeat the measures of the United States.” Trump’s defenders argue that this venerable law is rarely invoked ― and therefore unenforceable. But no federal court has ever upheld such an argument, nor should one here.

What if Michael Flynn, acting on behalf of President-elect Trump, promised to undermine sanctions imposed by President Barack Obama?

Consider then-candidate Richard Nixon, who we now know used back channels to secretly sabotage the Johnson administration’s peace overtures to North Vietnam ― and thereby win the 1968 election. Does anyone doubt that, if made public, Nixon’s treacherous behavior could have ― and should have ― been deemed criminal?

Then there is bribery of a public official “either before or after such person has qualified” ― covering those, like a candidate or president-elect, who “receive or accept anything of value” in exchange for “being influenced in the performance of any official act.” Such as lifting sanctions once in office.

In short, the assertion that Trump could legally collaborate with Russia to undermine America’s presidential election is contrary to federal law ― and an invitation to corruption and betrayal.

Former FBI Director James Comey is sworn in before he testified to the Senate Intelligence Committee on June 8, 2017.
Former FBI Director James Comey is sworn in before he testified to the Senate Intelligence Committee on June 8, 2017.
NurPhoto via Getty Images

Further, Mueller is investigating whether, as president, Trump used his authority to obstruct the Russia investigation. Among other things, at issue here is Trump’s firing of FBI director James Comey for continuing to investigate Flynn’s pre-inaugural conversations with Russia ― a firing intended, Trump bragged to Russia’s foreign minister and ambassador to the U.S., to curtail the investigation.

Nonetheless, Trump’s defenders insist that any action within presidential authority ― like firing Comey ― cannot be obstruction. His recently departed lawyer John Dowd claimed that the “president cannot obstruct justice because he is the chief law enforcement officer...”

Yet again, this is wrong.

The principal obstruction statute covers anyone who “corruptly... influences, obstructs, or impedes… the due administration of justice” ― or attempts to do so. The question is motive ― whether the president, by his actions, intended to obstruct justice. If so, Trump is no different than a county prosecutor who fires an underling to conceal his own corruption.

By arguing that Trump’s motives are irrelevant, his enablers would license the president to wield any power given him to subvert the rule of law. This is dangerous ― and fallacious. Across our criminal law, the difference between guilt and innocence rests on intent. That’s what distinguishes self-defense from murder ― and marks the lawless actions of a rogue president.

Again, take Nixon. As president, he interfered with an FBI investigation to conceal his own involvement in covering up the break-in at the Democratic National Committee headquarters. The first article of impeachment was obstruction of justice. No serious commentator, then or now, has mounted a persuasive argument that this was not both a crime and a threat to democracy.

But Trump’s defenders would go even further, suggesting that, because he can impede an investigation by pardoning witnesses like Flynn, the pardon power implies his power to obstruct justice by other means. Do they then believe that a president can pardon people with impunity in exchange for bribes? Any pardon, while legal in itself, can further an obstruction of justice. As ever, the question is intent.

Pool via Getty Images

Trump’s defenders next assert that a president ― unique among all Americans ― “cannot be indicted, prosecuted and tried while still in office.” This is not only dubious on its own, but generates a sequence of specious sophistry which, ultimately, would also bar Trump’s impeachment.

No court has ever held that a sitting president cannot be indicted. Nor does the Constitution so provide. The sole quasi–legal authority for this proposition is DOJ guidelines arguing that criminal proceedings would impede a president in executing his duties. But this claim of blanket immunity withers under scrutiny.

When Nixon argued that a president was not required to produce evidence, the Supreme Court ruled that ― like anyone ― he was subject to the obligations and prohibitions of federal law. As for burdening the presidency, the high court held that such supposed burdens did not protect Bill Clinton from a civil lawsuit brought by Paula Jones. And the burdens imposed by a criminal case are no different than those resulting from impeachment.

Effectively, this argument invites Trump to remain in office to shield himself from criminal accountability. This is a dreadful proposition. And given that it rests on burdensomeness alone, a court can relieve those burdens by suspending all post-indictment proceedings until the president leaves office.

Assume, however, that ― persuaded that he cannot indict a sitting president ― Mueller files a report specifying Trump’s misconduct. Our recourse becomes impeachment.

Not so fast, sings the president’s chorus. Having argued that Trump cannot be indicted, they then declare that he cannot be impeached absent violations of criminal law. This circular reasoning would effectively erase our express constitutional protection against a lawless president who, for example, pardons culpable associates to conceal his own crimes. Or, as Trump threatens, fires Mueller in an effort to terminate the investigation ― the ultimate obstruction of justice.

Moreover, this contention is constitutionally illiterate. Article I grants Congress the “sole power’ to undertake impeachment, unconstrained by statutory definition or judicial review. The grounds for impeachment proceedings ― and the punishment ― are decided by Congress alone.

In this context, the intimation by Trump defenders that he can pardon himself further illuminates his advocates’ sophistry. To start, it contradicts the Supreme Court’s insistence, affirmed by Nixon’s Justice Department in 1974, that “no man can be a judge in his own case.” But if the criminal law allows presidential self–pardoning, impeachment is our sole bulwark against Trump’s assertion of autocratic power.

Consider, finally, this logical absurdity: The text of the Emoluments Clause, which bars corruption of our high officials by foreign governments, does not specify a criminal penalty. Therefore, under the standard for impeachment concocted by Trump’s apologists, violations of this constitutional prohibition are not subject to impeachment ― freeing Trump to enrich himself by leveraging his office.

But here’s the moral crux: Trump’s enablers would render us defenseless against a president who may have conspired with a foreign adversary to undermine our democracy. Of all the ways that Trump is degrading America’s legal and political institutions, they would enshrine the worst.

Richard North Patterson is a New York Times best-selling author of 22 novels, a former chairman of Common Cause, and a member of the Council on Foreign Relations.

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