Trump lawyer says a president can't 'obstruct justice.' Can that be true?

The assertion of Donald ...

Posted: Jan 26, 2018 10:15 AM
Updated: Jan 26, 2018 10:15 AM

The assertion of Donald Trump's lawyer that a president can never be guilty of obstructing justice because he is the country's top law enforcement officer recalls Richard Nixon's remark that "when the president does it, that means it is not illegal," and intensifies debate over whether a sitting president can be indicted.

Whether a president can be criminally charged -- for any offense -- has never been tested in the courts. But presidents have been subject to obstruction-of-justice charges in impeachment proceedings. And there is no question that a president can be removed for, as the US Constitution dictates, any "high crimes and misdemeanors."

Unlike a criminal case heard by a judge or jury, impeachment is a political process that comes down to votes: a majority in the US House of Representatives to impeach and a two-thirds vote of the US Senate to convict. Yet both sets of proceedings can follow the kind of special counsel investigation now underway. Comparisons to the Nixon scandal have been rife recent months. In Watergate, Nixon was not criminally charged but was named as an unindicted co-conspirator and pressured to resign with impeachment charges looming.

The deal between special counsel Robert Mueller and Trump's former national security adviser Michael Flynn ramped up controversy over whether Trump had known Flynn had lied to the FBI, as Flynn pleaded guilty to last Friday, and perhaps tried to interfere with the federal investigation of Flynn. Former FBI Director James Comey, who oversaw the Department of Justice probe related to Russia interference in the 2016 election before being fired by Trump in May, said Trump had asked him to stop pursuing Flynn.

A Trump tweet on Saturday suggested Trump knew before that request to Comey that Flynn had lied when he was fired. If so, that could increase the possibility that Trump was trying to impede Comey's pursuit of Flynn's potentially criminal behavior.

With that new storm brewing, Trump's personal lawyer John Dowd told Axios that "the President cannot obstruct justice because he is the chief law enforcement officer (under the Constitution's Article II) and has every right to express his view of any case."

But the Constitution is silent on the issue. And since Nixon and Watergate, lawyers inside and outside the executive branch have debated whether a president may be criminally prosecuted.

In the early 1970s, Nixon was involved in the cover-up of a June 1972 break-in at the Democratic Party headquarters in the Watergate building. His denials of any wrongdoing dramatically undercut when White House tapes of related conversations were discovered. Nixon resigned in August 1974, shortly after the US Supreme Court ruled he had to turn over the tapes to a special prosecutor.

Later in 1977, in a series of interviews with journalist David Frost, he remarked that when "the president does it, that means it is not illegal." The comment, addressing national security and broader presidential power, has been one of the most startling and enduring from those televised interviews.

During Watergate, the Department of Justice's Office of Legal Counsel concluded that criminal prosecution of a sitting president would undermine the executive's duty to carry out his constitutional duties. In 2000, the office reiterated that 1973 position that the Constitution forbids the indictment or criminal prosecution of a sitting president.

Still, lawyers then and now say the real answer would rest with the courts, and some lawyers argue that since the Constitution does not address the question, the US Supreme Court could ultimately find that the president was not above prosecution.

Nixon's threatened impeachment, as well as President Bill Clinton's actual impeachment in 1998, both began with reports from special prosecutors in roles such as Mueller's. Obstruction-of-justice charges were leveled in both cases.

In the Clinton ordeal, the Republican-dominated House of Representatives passed two articles of impeachment in December 1998 related to obstruction of justice and perjury. The Senate acquitted Clinton in February 1999 after the chamber fell short of the two-thirds majority required for conviction. The only other US president to be impeached, Andrew Johnson in 1868, was similarly not convicted by the Senate.

So far Mueller has charged Flynn and three other individuals from the Trump campaign with crimes -- former campaign chairman Paul Manafort and his deputy on the campaign Rick Gates were indicted (both have pleaded not guilty), and a plea deal was reached with former adviser George Papadopoulos.

It is not known whether Mueller is building a case against the president and whether he would be inclined to put it before a criminal court rather than the House of Representatives.

Obstruction of justice, which Trump lawyer Dowd mentioned, is a federal offense that arises when someone tries to "influence, obstruct, or impede" the "due administration of justice." A key question is whether the President or any defendant acted with a corrupt intent.

Much of the criticism of Trump's actions related to the Russia probe go back to February when Trump asked Comey to drop the Flynn investigation and then fired him.

Whether that or any of the President's other actions would offer sufficient grounds for an obstruction-of-justice conviction could rest with a court, or it may turn out, only with the two chambers of Congress.

Mississippi Coronavirus Cases

Data is updated nightly.

Confirmed Cases: 15229

Reported Deaths: 723
CountyConfirmedDeaths
Hinds99925
Lauderdale73561
Madison72023
Scott65012
Neshoba63038
Jones59825
Forrest55338
DeSoto5337
Rankin4217
Leake42112
Holmes39728
Copiah3104
Jackson30513
Attala29216
Yazoo2734
Newton2714
Leflore25831
Harrison2577
Lincoln25628
Monroe25525
Lamar2355
Oktibbeha23512
Lowndes2119
Pearl River20931
Pike20211
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Noxubee1856
Wayne1771
Warren1719
Washington1687
Covington1652
Bolivar16011
Jasper1574
Smith15011
Lee1496
Kemper14411
Clarke14318
Chickasaw13312
Lafayette1314
Coahoma1214
Carroll11711
Marion1159
Clay1124
Winston1121
Claiborne1112
Lawrence1021
Simpson1010
Yalobusha905
Hancock9011
Tate891
Grenada893
Wilkinson889
Itawamba877
Union835
Marshall833
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Sunflower813
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Tippah7311
Panola703
Webster691
Calhoun644
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Amite601
Walthall550
Tunica543
Prentiss523
Perry503
Choctaw432
Jefferson421
Tishomingo320
Pontotoc323
Stone300
Franklin282
Tallahatchie271
Quitman260
George251
Alcorn171
Benton150
Greene121
Sharkey70
Unassigned00

Alabama Coronavirus Cases

Confirmed Cases: 17359

Reported Deaths: 618
CountyConfirmedDeaths
Mobile2191115
Jefferson1780102
Montgomery163238
Tuscaloosa73814
Marshall6879
Franklin5457
Lee54033
Shelby50319
Tallapoosa42364
Butler40217
Chambers35325
Walker3442
Elmore3398
Madison3274
Baldwin2839
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Morgan2511
Etowah24811
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Lowndes23812
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Autauga2164
Houston2094
Bullock2034
Pike1980
Colbert1782
Russell1670
Marengo1636
Lauderdale1612
Hale1598
Calhoun1543
Choctaw1518
Barbour1501
Wilcox1447
Clarke1422
Cullman1260
Randolph1257
Marion12111
St. Clair1181
Pickens1114
Dale1100
Talladega1093
Chilton1001
Limestone940
Greene944
Winston880
Covington771
Jackson772
Crenshaw763
Macon754
Henry742
Bibb721
Washington686
Blount611
Escambia573
Lawrence480
Geneva400
Conecuh391
Coosa381
Monroe372
Perry370
Cherokee373
Clay272
Lamar230
Fayette150
Cleburne141
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