Obstruction of Justice and Presidential Power

In discussing the obstruction of justice charge against President Trump with many people, I’ve noticed some common misconceptions. I’ve read different conflicting legal expert opinions. What follows is an explanation that bridges the gap between the legal expert and non-expert. The comments below are my non-lawyer opinions and explanation on this: what I think should be, not necessarily that which matches possible reality. Consume accordingly.

The disagreement about President Trump, James Comey, and Michael Flynn is so strong that not even a panel of expert legal analysts can’t agree. For clarity, start with the quality legal analysis of Jonathan Turley and the numerous articles he has penned on the subject. Criminal defense lawyer Scott Greenfield wrote another excellent summary of the Comey testimony. He sums up the accusation of obstruction of justice as follows:

“While this question of obstruction of justice will never go before a petit jury, it may well go before the Senate on Articles of Impeachment. The 28 words[1] will then mean whatever they say they mean, regardless of what anyone else says. That’s the American way.”

This quote is the best summary on the topic. To understand this quote, let’s address two questions: (1) Does the president have the authority to end investigations; and (2) does what he did here constitute a criminal violation of the law?

Let’s start with the second question. Elizabeth Price Foley, part of the above legal analyst panel, stated:

“…every court in the country that has been asked has ruled that an FBI investigation is not a “pending proceeding” within the meaning of the obstruction statutes.”

To clarify this in case law regarding Trump would require the judicial branch to rule on it. Without it, there will continue to be a lack of legal consensus among experts. As per Greenfield, no jury will have the opportunity to decide the case. Thus, we can only speculate about whether or not Trump legally obstructed justice.

To the first question, Andrew C. McCarthy writes at National Review that Comey did not believe that Trump obstructed justice because he “knows the law of obstruction cold. He clearly did not perceive himself to have been impeded — he neither resigned nor reported a crime up or down his chain of command.” How can this be?  Alan Dershowitz lays it out as plainly as possible:

Comey confirmed that under our Constitution, the president has the authority to direct the FBI to stop investigating any individual….the president can, in theory, decide who to investigate, who to stop investigating, who to prosecute and who not to prosecute.  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.

The Constitution gives the executive branch the sword. It is tasked with enforcing the laws. The President, as chief executive, has the power to prosecute and the power to pardon. How is it logical for the President, the arm of justice who can pardon whoever he wants for whatever reason he wants, to be legally guilty of impeding justice? It doesn’t even make sense.

So if the judicial branch has not ruled that Trump committed a crime and the executive branch is granted the constitutional rights to prosecute (or not) whoever it chooses, what more is there to say? The answer is the Articles of Impeachment. While the constitution gives broad discretion to the executive branch, it also gives the legislative branch the power to remove the president for political (not legal) reasons. Congress is not constrained by any laws, and why should it be?[2] Like the president has the power of pardon and forgiveness, Congress has the power to make laws as it pleases and the power to remove presidents for any reason it sees fit.[3]

So did Trump commit obstruction of justice? It doesn’t matter. Congress will decide whatever it wants to decide even if it means changing the meaning of obstruction of justice to suit its purposes. It truly is the American way.

[1] “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” – The words of Donald Trump spoken to James Comey.

[2] It gets to define terms like “obstruction of justice” however it sees fit.

[3] Of course the laws Congress passes must be constitutional and the judicial and executive branches can check their power. But those checks do not apply to removing the president.

Leave a Reply

Your email address will not be published. Required fields are marked *