Trump’s lawyer says a president can’t technically obstruct justice. Experts are dubious but to varying degrees

It was a whirlwind weekend for President Donald Trump's legal team, from Michael Flynn's guilty plea to Trump's problematic tweet to new reports that fill out the picture of a broadening Russia investigation. And it concluded Monday morning with Trump's personal lawyer making a bold claim: Regardless of all of it, John Dowd says, a president can't even technically obstruct justice. 

Here's the money quote Dowd gave to Axios: 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." 

To be clear, this is a Trump lawyer effectively trying to knock down one of two major pillars of the Russia investigation — to exempt his client completely from being held liable for his actions in (roughly) half the investigation. That investigation began by looking at possible collusion between the Trump campaign and Russia and, thanks to Trump's own actions, has also come to key on Trump's possible obstruction of justice. Dowd argues the latter is a mythical crime even if it is proven that Trump intervened in the investigation to save himself or others. 

This theory is clearly a hugely convenient one for the White House; that much is clear. But does it actually hold water, legally speaking? 

Experts are dubious, but they are dubious to varying degrees. Constitutional experts Jonathan Turley of George Washington University and Daniel P. Franklin of Georgia State University both said Dowd's argument isn't completely without merit. 

"The president's lawyer is overstating his case, but he has a point," Franklin said. "The words of a president, not expressed under oath and not in the service of obstruction (for example, ordering subordinates to commit obstruction), are just words and not actions and, therefore, are not a crime." 

Franklin said he believes the argument that Trump obstructed justice by firing FBI Director James Comey is "thin" and said he doesn't believe Trump can obstruct justice when he is acting within his authority as chief executive. But, he said, the president can obstruct justice when not acting in that capacity. 

"To the point that the president can't engage in obstruction because he is the chief executive," Franklin said of Dowd's argument, "that is engaging in sophistry." 

Turley said he disagrees with Dowd but that it is a "perfectly reasonable argument." He agrees that it's more difficult to prove obstruction when a president is acting as chief executive, but unlike Franklin, he said even those actions could theoretically be criminal. 

"[Trump] has the power to fire an attorney general, but he can commit a crime if he does so to block an investigation into alleged crimes," Turley said. 

Meena Bose, an expert on executive authority for Hostra University, noted that the ultimate arbiter would be Congress, which has the power to impeach and convict. And she noted that previous presidents who faced impeachment were confronted with obstruction charges — both explicit and implicit. 

"The articles of impeachment against Nixon mention obstruction of justice. The articles against Clinton, who was impeached, did so as well," Bose said. "The articles of impeachment against Andrew Johnson, who also was impeached, discussed alleged high crimes and misdemeanors that today might be construed as obstruction of justice." 

Others were blunter, arguing that Dowd's case is bogus and entirely self-serving. Michael Gerhardt of the University of North Carolina called it "absurd." 

"The president is obliged to faithfully execute the law, and that includes in circumstances where he or his friends are involved," Gerhardt said. "He must also comply like every citizen is obliged to follow the laws in everything else he does — ranging from filing his taxes properly to driving to avoiding sexual harassment in the workplace." 

Of course, no president has actually been removed from office via impeachment, so this is still a legal question that is unresolved. That means whatever the answer, Trump could be the one to answer it thanks to his own missteps. 

"For years, professors have engaged in a type of professorial parlor game of unanswered questions ranging from the definition of 'emoluments' to prosecuting a president in office to charging a president with obstruction," Turley said. 

He added: "To its great peril, the Trump administration seems intent on answering each of these questions."

Reader Comments ...

Next Up in Politics

Democratic candidates for Florida governor square off at debate
Democratic candidates for Florida governor square off at debate

Three of the four Democrats vying to replace Rick Scott as governor of the third-largest state in the nation get their news first from The New York Times, and only one, Tallahassee Mayor Andrew Gillum, relies on his hometown paper to find out what’s going on in the world. The insight into who’s reading what was among the lighter moments...
Donald Trump makes a rare concession of defeat in eulogizing Barbara Bush
Donald Trump makes a rare concession of defeat in eulogizing Barbara Bush

President Donald Trump speaking at a joint press conference with Japanese Prime Minister Shinzo Abe at Mar-a-Lago on Wednesday. (Allen Eyestone/The Palm Beach Post) PALM BEACH — President Donald Trump often compares himself to other presidents — and often finds his predecessors lacking. At a joint...
Florida Gov. Scott, Seminoles reach deal on gambling money
Florida Gov. Scott, Seminoles reach deal on gambling money

As legislative leaders hold behind-the-scenes talks about revamping the gambling industry, Gov. Rick Scott on Wednesday announced a deal that will lead to the Seminole Tribe continuing to pay more than $300 million a year in casino money to the state. The tribe would continue making the payments, which are rooted in a 2010 gambling agreement, through...
PEACE calls for community IDs, slams commissioners who skipped meeting
PEACE calls for community IDs, slams commissioners who skipped meeting

More than 2,000 people attended a community meeting at the Palm Beach County Convention Center Monday evening, but organizers were miffed that figure wasn’t a little larger. Officials from the social activism group People Engaged in Active Community Efforts called out six of the county’s seven commissioners for skipping the gathering, saying...
Busy Twitter morning at Mar-a-Lago as Trump-Abe summit continues
Busy Twitter morning at Mar-a-Lago as Trump-Abe summit continues

President Donald Trump arriving at Palm Beach International Airport on Monday. (Melanie Bell/The Palm Beach Post) Before he begins the second day of an international summit with Japanese Prime Minister Shinzo Abe at Mar-a-Lago, President Donald Trump has confirmed a top-secret meeting between CIA Director...
More Stories