‘Presidential obstruction of justice’
By Eugene Volokh July 19
An interesting new paper, by Daniel Hemel and our former co-blogger Eric Posner. Here’s the introduction:
Can a president be held criminally liable for obstruction of justice? That question took on new urgency in the wake of President Donald Trump’s firing of FBI director James Comey in May 2017. While the president cited Deputy Attorney General Rod Rosenstein’s determination that Comey had mishandled the investigation into Hillary Clinton’s disclosure of classified emails, Trump later admitted in an interview that he “was going to fire [Comey] regardless of the recommendation.” Because Trump had also signaled to Comey that he was unhappy with the FBI’s investigation of former National Security Advisor Michael Flynn, speculation arose that Trump had fired Comey to punish him for failing to drop the investigation of Flynn. This in turn sparked allegations that Trump had committed the crime of obstruction of justice, which consists of interference with investigations, prosecutions, and other law enforcement actions with “corrupt” intent.
President Trump was not the first president to be accused of obstruction of justice. The first article of impeachment against President Richard Nixon, which was adopted by the House Judiciary Committee in 1974, accused him of obstructing the investigation into the Watergate burglary by interfering with an FBI investigation. The article also mentioned interference with the investigation by the Watergate special prosecutor, whose firing was ordered by Nixon. After President George H.W. Bush pardoned former Defense Secretary Caspar Weinberger, who had been charged for crimes related to the Iran-Contra scandal, Bush was accused of obstructing the investigation into Bush’s own role in the scandal. The House impeached President Bill Clinton in 1998, based in part on obstruction of justice. The allegations against Clinton included charges that he had lied and withheld evidence in a civil action and lied to a grand jury.
These examples show that the possibility that the president could commit the crime of obstruction of justice is not a theoretical curiosity or a question specific to the unusual Trump administration. But the claim that the president can commit such a crime faces a powerful objection rooted in the Constitution. Obstruction of justice laws are normally applied to private citizens — people who bribe jurors, hide evidence from the police, or lie to investigators. The president is the head of the executive branch and therefore also the head of federal law enforcement. He can fire the FBI director, the attorney general, or any other principal officer in the executive branch who fails to maintain his confidence. If President Trump can fire an FBI director merely for displeasing him, why can’t he fire an FBI director who pursues an investigation that the president wants shut down?
more:
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/07/19/presidential-obstruction-of-justice/?utm_term=.d0e758e30bae
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