Special Counsel Robert Mueller’s investigation of Russian interference in the 2016 elections is like a Rorschach test. It tells us more about the observer than it does about the president.
Defenders of President Donald Trump are apt to see wrongdoing on the part of former FBI director James Comey and now that of Mueller. The president’s critics are more likely to interpret the same events as displaying corrupt motives and a cover-up of a conspiracy with the Russians to meddle in the 2016 presidential elections.
But the investigation, which has already generated several guilty pleas from several top Trump-campaign operatives, has raised two questions about the president’s legal exposure. Does the federal obstruction law cover official acts of the president? If the answer is yes, is there enough evidence to prove, beyond a reasonable doubt, that the president acted corruptly when he asked Comey to “go easy on” former national-security adviser Michael Flynn, or when he fired Comey?
Trump’s personal lawyer, John M. Dowd, and Harvard law professor Alan Dershowitz denied last week that a president could ever commit obstruction of justice in the exercise of his constitutional authorities. While Dowd bluntly argued that a president “cannot obstruct justice because he is the chief law enforcement officer,” Dershowitz espoused a more nuanced view: “A president can be charged with obstruction if he commits criminal acts beyond his constitutionally authorized acts.”
Trump’s defenders have a point. Congress cannot make it illegal for the president to veto a bill, sign a treaty, or fire a cabinet officer. Otherwise, the legislative branch could reduce the president to a mere prime minister with authority to do no more than execute Congress’s will.
Moreover, Dowd is undoubtedly right to highlight the president’s law-enforcement role — his constitutional duty to “take care that the laws are faithfully executed.” All federal law-enforcement officers assist the president in fulfilling this responsibility, and ultimately he can remove any who refuse his orders. President Trump can effectively preclude any obstruction-of-justice charges against him by firing any prosecutors who dare file them.
But when federal officials — the president included — misuse their powers, they enjoy no blanket immunity. To begin with, the Constitution makes the president removable for “treason, bribery, and high crimes and misdemeanors.” While debate continues over whether this encompasses “maladministration” and policy disputes, it clearly includes crimes. In an obvious example, a chief executive could commit treason by accepting a bribe in exchange for making a treaty. A president’s exercise of his foreign-affairs powers to fulfill his side of a corrupt bargain would grant him no immunity.
During Virginia’s critical debate over the Constitution, James Madison argued that impeachment could hold the president responsible for a crime. George Mason complained that the president might shield treasonous aides by issuing a pardon. Madison declared that if there were grounds to believe that the president might “shelter” his suspicious associates, the president could be impeached. Later Madison declared that if the president were to “atrocious[ly] summon only a few states [to consider a treaty], he would be impeached and convicted.” Practice bears out Madison’s view. In 1999, the House impeached Bill Clinton for obstruction of justice involving his official conduct in office. Because of Richard Nixon’s resignation, the House never voted on articles of impeachment that likewise included an obstruction charge tied to his official acts.
Impeachment does not bar a president’s liability for criminal acts.
Impeachment does not bar a president’s liability for criminal acts. While the Court has held that the president cannot be liable for civil damages for his official acts (Nixon v. Fitzgerald), the Court has never hinted that presidents are forever immune from criminal prosecutions arising out of their official acts. Indeed, the conventional view is that prosecutions can take place once the president leaves office.
But what of the claim that the president’s official acts cannot form the basis of a criminal charge? In making obstruction a crime, Congress did not explicitly include official acts. If the obstruction statutes apply to the president, they apply to Supreme Court justices no less in the course of deciding cases. The Court might seek to avoid these constitutional questions by concluding that these acts do apply to the constitutional acts of presidents and judges.
Even if the obstruction statutes do apply to the president’s constitutional acts, however, a good-faith exercise of official discretion should not yield a violation, because it is not corrupt and does not involve threats or force. A prosecutor does not obstruct justice if he declines to bring a prosecution for good-faith reasons, even if others disagree. A judge who acquits a defendant does not obstruct justice, even if she is reversed on appeal. And the same is true for the president. If the president exercises his constitutional authorities without corruption, force, or threat, then he has not committed obstruction, at least under Congress’s statutes.