Desperate times call for desperate measures.
President Trump’s former campaign manager, Paul Manafort, has been indicted. Michael Flynn, Trump’s former national security adviser and one of his closest confidants, has flipped and is cooperating with special prosecutor Robert Mueller. Trump himself sent out a tweet over the weekend that, according to legal experts, makes the case against him for obstruction of justice.
This morning, in a seemingly coordinated effort, Trump embraced the idea that he did not obstruct justice because the “President cannot obstruct justice.”
The argument is an attempt to justify Trump’s actions in February, when he pressured former FBI Director James Comey to drop the investigation of Flynn and then fired Comey when he refused to comply.
First, Trump’s personal lawyer John Dowd made the argument to Axios’ Mike Allen.
John Dowd, President Trump’s outside lawyer, outlined to me a new and highly controversial defense/theory in the Russia probe: A president cannot be guilty of obstruction of justice.
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,” Dowd claims.
Trump himself participated in the effort on Twitter, directing people to a segment of Fox & Friends with Alan Dershowitz, who has emerged as a key defender of Trump.
In the segment, Dershowitz makes the exact same claim: The president cannot be guilty of obstruction of justice.
Dershowitz adds a patina of legal respectability to the argument. He argues that Congress cannot charge a president “with obstruction of justice for exercising his constitutional power.” Dershowitz argues that the Constitution gives Trump the power to fire Comey for any reason and also to tell him “who to investigate and not to investigate.” This is not a view that is broadly shared among legal scholars, who believe there are Constitutional limitations on the president’s power.
But then things get even weirder. Dershowitz said that, in order to be guilty of obstruction, Trump would need to commit “clearly illegal acts,” like paying hush money. Dershowitz argues that if Congress were to charge Trump with obstruction under the current set of facts it would create a “Constitutional crisis.” He repeats this claim twice. It’s unclear why a crisis would be created unless Trump refused to leave office after Congress impeached and voted to remove Trump.
Ultimately though, it is up to Congress — not Trump or Alan Dershowitz — to decide what constitutes a “high crime” under the Constitution to justify impeachment and removal. It is ultimately a political question. There is precedent that obstruction of justice meets this bar.
The articles of impeachment against Richard Nixon, which prompted his resignation, state that Nixon was “in violation of his constitutional duty to take care that the laws be faithfully executed, has prevented, obstructed, and impeded the administration of justice.” The evidence against Nixon included: “Interfering or endeavoring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special Prosecution Force, and Congressional Committees.” If Dershowitz’s view were correct, Nixon would not be able to “interfere” with the conduct of a Department of Justice investigation because he could unilaterally determine who to investigate or not investigate.
Beyond the legal arguments, Trump is taking an entirely new posture. Before, he argued that the entire investigation was a hoax. Now he is arguing that even if what he did were to meet the legal definition of obstruction of justice by any other person, it does not count because he’s the president. Or, as Nixon put it, “Well, when the president does it, that means it is not illegal.”