A bold new legal defense for Trump: Presidents cannot obstruct justice
Trump tweeted over the weekend that he knew then-national security adviser Michael Flynn lied to the FBI about his contacts with the Russian ambassador before firing him in February — and before FBI Director James B. Comey said Trump asked him to be lenient while investigating Flynn. Experts said the president’s admission increased his legal exposure to obstruction-of-justice charges, one of the core crimes under investigation by special counsel Robert S. Mueller III.
But Trump’s personal lawyer John Dowd sought to excuse the president’s tweet in part by telling Axios and NBC News on Monday 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.”
Dowd declined to elaborate on his theory or explain the emerging legal strategy to The Washington Post.
Inside the White House, some senior officials were baffled that Dowd publicly offered this interpretation of the law, which has been advanced since the summer by constitutional scholar Alan Dershowitz in defense of Trump but flatly dismissed by many other legal scholars.
Ty Cobb, a White House lawyer overseeing its handling of the Russia investigation, said Monday that the Dershowitz-Dowd theory was not the president’s official legal strategy.
“It’s interesting as a technical legal issue, but the president’s lawyers intend to present a fact-based defense, not a mere legal defense,” Cobb said in an interview with The Post. “That should resolve things, but we all shall see.”
Asked whether Trump agrees that a president cannot obstruct justice, Cobb replied, “I never talk about what the president’s beliefs are or discuss communications between the president and his lawyers.”
Many Washington lawyers and legal scholars disputed Dowd’s interpretation, citing several court cases and articles of impeachment — as well as, in the words of one expert, “common sense.”
“We have a president, not a king,” said Sam Berger, senior policy adviser at the Center for American Progress, a liberal think tank. “No one is above the law, whether it be Trump or any of his close associates. It’s the sort of desperate claim that makes you wonder, ‘What exactly are they hiding?’”
Berger argued that Dowd’s reasoning amounts to a “Hail Mary pass” for the president to escape responsibility. “This response, ‘If it’s the president, it’s not a crime,’ has never flown with the American people or our legal system in any context,” he said. “Claiming that the president can’t obstruct justice flies in the face of both common sense and past precedent.”
Some legal scholars, however, support Dowd’s claim. Dershowitz, a Harvard Law School professor, said Monday on Fox News Channel that Trump was within his rights when he fired Comey.
“You cannot charge a president with obstruction of justice for exercising his constitutional power to fire Comey and his constitutional authority to tell the Justice Department who to investigate, who not to investigate,” Dershowitz said. “That’s what Thomas Jefferson did, that’s what Lincoln did, that’s what Roosevelt did. We have precedents that clearly establish that.”
Dershowitz was appearing on “Fox & Friends,” a pro-Trump morning show that the president regularly watches. After his appearance, Trump tweeted, “A must watch: Legal Scholar Alan Dershowitz was just on @foxandfriends talking of what is going on with respect to the greatest Witch Hunt in U.S. political history.”
Dershowitz wrote a column in June for The Washington Examiner in which he argued that Trump’s efforts to stop the FBI probe could not be considered obstruction because he was constitutionally empowered as president to direct the attorney general and the FBI director and tell them whom to prosecute.
Furthermore, he wrote, “the president has the constitutional authority to stop the investigation of any person by simply pardoning that person.”