Can a sitting president be guilty of obstructing justice if he corruptly interferes with a federal criminal investigation?
The answer may seem obvious, but it has become a matter of debate.
Harvard Law Professor Alan Dershowitz, Newt Gingrich, and Trump lawyer Jay Sekulow are all claiming that President Trump can freely interfere with a federal criminal investigation without being held accountable for obstruction of justice. Professor Dershowitz’s argument is stated in an op-ed piece he wrote on June 8:
“The president is the head of the unified executive branch of government, and the Justice Department and the FBI work under him and he may order them to do what he wishes.”
At best, that argument treats a difficult, complex issue as being far more settled than it really is. At worst, it conjures up the disturbing image of an imperial presidency.
A president has stewardship over the Executive Branch, but he doesn’t own it.
Professor Dershowitz presents the case as a no-brainer: “The history is clear, the precedents are clear, the constitutional structure is clear, and common sense is clear.”
Let’s start by taking the “common sense” argument off the table.
It isn’t within the canon of American common sense to suppose that a president, because he heads the Executive Branch of the government, can with total impunity corruptly interfere with a criminal investigation with the specific intention to conceal or cover up a crime.
Most Americans would recoil at the thought. They just don’t expect our country, where nobody is above the law, to work that way.
Before Trump supporters complain that it hasn’t been proven that Trump obstructed justice, let me say that I agree. Not yet. Although the rote Trump talking point that there’s “no evidence” of obstruction of justice is ridiculous, it is a perfectly legitimate argument to say that the evidence that has been publicly disclosed to date is insufficient to conclude with certainty that Trump has committed a crime.
But that’s not Professor Dershowitz’s point. He’s not arguing that the known facts are insufficient for a conviction. He’s arguing, as far as I can tell, that Trump can’t obstruct justice by interfering with a federal criminal investigation because he runs the Executive Branch, and therefore can do whatever he wants with any investigation within it.
“That absolutist view of constitutional authority strikes a false note. The right to abuse a power is not automatically granted with the power itself.”
That absolutist view of constitutional authority strikes a false note. The right to abuse a power is not automatically granted with the power itself.
For instance, the First Amendment says unequivocally that Congress “shall make no law” abridging the freedom of speech. Yet Congress and the States have repeatedly passed laws that restrict free speech. Laws prohibiting slander and fraud, for example, are universally accepted as constitutional, despite the absolute language of the First Amendment.
That may not be a perfect analogy, but it nevertheless demonstrates the proposition that rights, no matter how sacred, are not absolute, and cannot be corruptly abused with impunity.
Professor Dershowitz’s contrary position appears to combine what he calls a “civil liberties” argument with a constitutional argument. Both are highly questionable.
The civil liberties argument, as best I understand it, appears to be that since a president has the authority to terminate or otherwise interfere with an investigation within the Executive Branch, it doesn’t matter whether his intentions are corrupt or innocent. It is only the act that counts, not the intention. Looking beyond the act to the intention would be to accuse a president of a “thought crime.”
That’s a huge leap in logic, and it’s oddly inconsistent with the way our legal system works. Criminal defendants are convicted every day based on proof of motivation or intention. Intention is the difference between a gift and a bribe. It is the difference between a heroic act of self-defense and a premeditated murder. It is the difference between an innocent mistake and a lie. Yet bribers, murderers and defrauders aren’t convicted of “thought crimes” simply because their convictions are based in part on a determination of the state of mind that motivated their actions.
Professor Dershowitz isn’t standing up for a president’s right to have the same legal protections as everybody else. He’s doing just the opposite. He’s saying that a president, unlike every other American, is immune from scrutiny of his intentions in determining whether his conduct is criminal or innocent.
That may be a nice law school argument, but it has nothing to do with civil liberties.
That brings us to the constitutional argument. Since the president is the head of the Executive Branch of government, the argument goes, he may order anybody within it “to do what he wishes,” even if that order is in furtherance of a scheme to corruptly obstruct a criminal investigation.
Really? Is there no limit to this power? Could a president order the FBI to conduct a purely political, sham investigation to retaliate against a political adversary? Could he order the Justice Department to bring false charges against a competitor to gain a business advantage? Could he instruct a U.S. Attorney to knowingly present perjured testimony to a Grand Jury because he wants to punish somebody whose only crime was criticizing a president?
That can’t be right. And it isn’t.
This isn’t a law review article, so I’ll try to avoid the deep waters. But I’ll stick a toe in.
“In other words, while he is President, Trump will be held accountable, if at all, by Congress, not in a court of law.”
Suffice it to say that our courts don’t treat presidential authority as absolute. The Supreme Court engages in a “delicate exercise in constitutional interpretation” to determine whether congressional limitations on a president’s executive authority are constitutional.
For instance, in a 1988 decision in a case called Morrison v. Olson, the Supreme Court upheld the constitutionality of a statute that prohibited a president from firing an independent counsel without cause, even though it undeniably limited the president’s constitutional authority to control and supervise the Executive Branch.
The Court did not treat that authority as absolute and unlimited. It looked at the totality of the facts and circumstances to determine whether the limitation was reasonable. It held that although Congress had indeed limited the president’s authority, it had not interfered “impermissibly” with his constitutional obligation to ensure the faithful execution of the laws.
That should end the discussion of absolute presidential authority over the Executive Branch. If a president could do “whatever he wishes” in exercising that authority, Congress shouldn’t be able to tell him that he can fire an independent counsel operating within the Executive Branch only “for cause.”
But that’s what Congress did, and the Supreme Court upheld it. The Morrison decision has been criticized by some legal scholars, and parts of it arguably have been overruled by later Supreme Court cases. But not that part.
That’s more than enough to raise serious doubt about the absolutist argument that a president’s authority over the Executive Branch is so unlimited that he may do “what he wishes” with complete impunity, even if what he wishes to do is to corruptly obstruct justice.
And keep in mind that nobody is about to drag Trump into court for obstructing justice anyway, at least not while he remains in office. There is near-unanimous agreement that a sitting president is immune from criminal prosecution while in office. According to most, the sole remedy for presidential misconduct is impeachment.
In other words, while he is President, Trump will be held accountable, if at all, by Congress, not in a court of law.
And there is little doubt that obstruction of justice, including actions taken by a President pursuant to his authority as the head of the Executive Branch, can be and has been used as grounds for impeachment.
The Articles of Impeachment adopted by the House Judiciary Committee in the wake of the Watergate scandal included a charge that President Nixon used “the powers of his high office” to interfere with the conduct of investigations “by the Department of Justice of the United States, the Federal Bureau of Investigation, [and] the office of Watergate Special Prosecution Force.”
Every one of those investigations was being conducted within the Executive Branch. Nixon, like Trump, had constitutional authority to control the Executive Branch. Yet interference with those investigations was viewed as obstruction of justice, and included in the Articles of Impeachment.
So don’t believe Trump supporters when they tell you that a president can’t obstruct justice. As if it were written in stone.
It isn’t. It’s not even written on paper.
Philip Rotner is a writer, attorney and an engaged citizen who has spent over 40 years practicing law. His views are his own and do not reflect the views of any organization with which he has been associated. Follow him on Twitter at @PhilipRotner.