President Trump’s personal lawyer kicked off a fiery debate on Monday with one controversial statement: The president cannot be guilty of obstruction of justice.
The assertion comes in the wake of a presidential tweet, which legal analysts dubbed anywhere from “cataclysmic” to “a non-story,” that raised questions about whether Trump has put himself in legal peril in the federal investigation into Russian interference in the 2016 election.
Top Democrats on Capitol Hill believe that special counsel Robert Mueller is building an obstruction of justice case that could implicate Trump. The tweet, which the White House has since blamed on “sloppy” drafting by the president’s lawyer, could be used as evidence in such a case, legal scholars say.
“This is a pretty substantial confession to essential knowledge elements of an obstruction of justice charge,” tweeted Susan Hennessy, a former National Security Agency counsel.
White House lawyer John Dowd told Axios in a report published Monday that the “president cannot obstruct justice because he is the chief law enforcement officer under [Article II of the Constitution] and has every right to express his view of any case.”
The assertion that Trump’s tweet admitted obstruction is “ignorant and arrogant,” Dowd said.
Trump stunned many inside and outside the Washington Beltway on Saturday when he tweeted that he fired former national security adviser Michael Flynn “because he lied to the vice president and the FBI” — suggesting that he was aware Flynn had committed a felony when he urged then-Director James Comey to drop the case.
Democrats have long argued that Trump fired Comey to stifle the Russia investigation, a general act that has resulted in obstruction convictions in the past.
“What we’re beginning to see is the putting together of a case of obstruction of justice,” Sen. Dianne FeinsteinDianne Emiel FeinsteinBlumenthal: ‘Credible case’ of obstruction of justice can be made against Trump Trump Jr. set for high-stakes interview with House intel panel Dem senator calls for Trump Jr. to be subpoenaed MORE (D-Calif.) said Sunday on NBC’s “Meet the Press.”
There is little question that a sitting president can face political consequences for such a crime: Obstruction was the basis for the impeachment articles against both Presidents Richard Nixon and Bill ClintonWilliam (Bill) Jefferson ClintonFormer New Mexico gov: Trump’s foreign policy is getting ‘criticized by everybody’ Mark Mellman: History’s judgment Congress should massively ramp up funding for the NIH MORE.
“The facts are disturbing and compelling on the president’s intent to obstruct justice,” said then-Sen. Jeff SessionsJefferson (Jeff) Beauregard SessionsMoore gets boost from Bannon in final days of campaign Overnight Regulation: Feds push to clarify regs on bump stocks | Interior wants Trump to shrink two more monuments | Navajo Nation sues over monument rollback | FCC won’t delay net neutrality vote | Senate panel approves bill easing Dodd-Frank rules Mueller lieutenant sent email saying he was proud of Sally Yates MORE (R-Ala.) in 1999, calling for Clinton to be removed from office over the investigation into his affair with White House intern Monica Lewinsky.
But it remains a hotly debated question whether a sitting president can commit the crime of obstruction of justice as a legal matter — or whether he is effectively immune to that charge.
Dowd’s argument echoes a claim made by Nixon: that if the president has a valid purpose for an otherwise illegal action, it isn’t illegal. In Trump’s case, some scholars point to the impact the ongoing federal investigation has had on the president’s ability to run the country effectively, what Comey says Trump described as a “cloud” over his administration.
“The argument is the president has a valid purpose because these investigations are screwing up his foreign affairs,” explained Josh Blackman, a professor at the Houston College of Law who specializes in constitutional law.
“It’s not a trivial argument.”
The United States has embraced a longstanding norm of Justice Department independence from the White House, but it’s not enshrined in constitutional law, several scholars told The Hill. Legally, as the chief executive, the president has the authority to guide the direction of any FBI investigation he sees fit.
“He is the FBI. He’s the attorney general. He possesses all power under Article II of the Constitution,” said Robert Ray, the former independent counsel for the Whitewater controversy during the Clinton administration.
As a practical matter, that provision of the founding document makes it structurally impossible for the Department of Justice to indict its own boss, some scholars say.
“The facts can be brought to the attention of the Congress in a report and they can decide to do with them what they will, but the notion that any of that is going to result in criminal charges I think is completely a fantasy,” Ray said.
Critics of Trump’s conduct disagree, arguing that the president’s intent is relevant to the scope of his authority.
“The fact that the president has lawful authority to take a particular course of action does not immunize him if he takes that action with the unlawful intent of obstructing a proceeding for an improper purpose,” write Barry Berke, Noah Bookbinder and former Obama ethics czar Norm Eisen.
The Constitution states that any officer who is removed from office through impeachment may also face criminal charges — including the president — but leaves open the question of when.
Some analysts suggest that Mueller could avoid the legal uncertainty of seeking an indictment for a sitting president by using a sealed indictment to reserve prosecution until Trump leaves office.
Other public officials subject to removal only by impeachment, like federal judges, have been convicted of federal crimes before being impeached.
Under two administrations — Nixon and Clinton — the Office of Legal Counsel (OLC) has issued memoranda finding that a sitting president cannot be indicted. But both acknowledge that there is no explicit support in the Constitution for that conclusion, instead relying on a series of more practical arguments, including that the removal of a president is the duty of Congress, not a jury, and that the court trial of a president would impede his ability to govern.
But the courts have overruled memoranda from the OLC before. It’s also unclear whether such memoranda, as executive branch policy, would be binding on Mueller.
Still, the most likely pathway for Mueller, analysts say — the one with the fewest legal uncertainties — is to issue a report to the House of Representatives and let it take up impeachment proceedings on the basis of obstruction of justice, if it so chooses.
In the Watergate case, after the grand jury returned an indictment against Nixon’s co-conspirators, the special prosecutor asked the panel and the court supervising it to submit a report to the House Judiciary Committee, which then initiated impeachment proceedings.
In that case, the lower chamber was not persuaded by the argument that Article II makes it impossible for the president to obstruct of justice — a position Nixon maintained in an interview three years after his resignation.
“When the president does it, that means it is not illegal,” he said.
This post originally appeared on The Hill