The president isn’t above the law, whatever his lawyers may claim—but prosecutors will face an unusually high burden to prove any misconduct.
President Trump’s lawyers, in a letter released over the weekend, staked out bold the ground that the president can’t commit obstruction of justice in his interactions with the federal law-enforcement apparatus—neither by firing investigators nor by interfering with their performance of their duties. In the letter, written back in January to Special Counsel Robert Mueller and recently leaked to The New York Times, they write that “the President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.”
For understandable reasons, this argument has a lot of people reaching for the smelling salts. It has, after all, overtones of both Richard Nixon’s claim that “when the president does it, that means that it is not illegal” and also of the executive power absolutism that scared a lot of people during the George W. Bush administration.
This may surprise some readers, but I actually don’t think the argument is frivolous. How exactly the obstruction-of-justice statutes interact with the president’s broad powers to supervise the executive branch under Article II of the Constitution is a genuinely difficult question. There is no doubt in my mind that Article II limits to a considerable degree the application of the obstruction statutes to the president when he is acting in his capacity as chief law-enforcement officer of the country.
The president’s argument leads to an absurdity and it therefore must have a flaw, but identifying what precisely is wrong with it is a bit of a puzzle. And it’s worth doing carefully—not simply dismissing the argument because of the clownish aspects of the letter or because of the argument’s audacity.
The key question here is not whether Article II limits the application of the obstruction laws but how much it does so—whether it does so absolutely or only partially. And critically, if it does so only partially, what is the principle under which the obstruction statutes operate against the president?
This is a puzzle over which I have no doubt Mueller’s team has spent a lot of time. It’s a question on which we have relatively little solid law, but Mueller simply could not conduct a protracted obstruction investigation without having developed a theory of whether and how and the president can and cannot violate the obstruction statutes. I don’t know Mueller’s theory. But here is how I would think about the question if I were in his shoes.
Let’s dispense with the easy question first: It is definitely possible for a president to obstruct justice. A president who coaxes a witness to lie, who pays off a witness, who bribes a juror, or who picks up the phone and threatens a federal judge would of course be amenable to criminal prosecution (at least after he leaves office) for obstruction of justice. There would be no plausible defense that he was entitled to do these things because of Article II. This is why both Richard Nixon and Bill Clinton faced plausible criminal jeopardy under the obstruction statutes: In both cases, their obstructive behaviors went well beyond their management of the Executive Branch.
But the allegations against Trump are different, and trickier. They are allegations that his use of his acknowledged Article II powers might constitute an obstruction. The allegations all involve acts—firing people, for example, and supervising investigations and staff—that the Constitution specifically gives the president the power to do. So these allegations raise a different question: Is it possible for a president to obstruct justice in the context of performing his constitutionally assigned role, that is, using only otherwise valid exercises of his constitutional powers?
Before your knee jerks as you exclaim, “Of course!” keep in mind that Congress cannot with a mere criminal statute take away power that the Constitution gives the president. With that principle in mind, it simply has to be the case that Article II, at least to some degree, limits application of the obstruction statutes to otherwise valid presidential actions.
This is a question I considered at some length at Lawfare back in December, and that analysis continues to apply today. The president has the inherent authority to direct the Executive Branch. And to direct sometimes means to hold back, which is to say to obstruct. I don’t doubt that there are many presidential acts that would constitute obstructions of justice if anyone but the president engaged in them but which constitute legitimate exercises of presidential power when the president engages in them.
If this sounds Nixonian, a few examples should suffice to show that it is clearly correct and not even troubling from a democratic perspective. If anyone other than Congress impeded the bringing of terrorism suspects to court for trial, it would arguably constitute an obstruction of justice. When Congress does precisely that by passing a law, we call it a transfer restriction and we don’t even think about obstruction of justice. If anyone but a president sought to unilaterally invalidate a criminal conviction and set a felon loose from prison, we would be horrified. The president has that explicit constitutional power in the pardon and commutation authority.
The nature of constitutional delegations of power is that they entitle the empowered official to do certain things that other people can’t do. So the president is immune from obstruction-of-justice charges for pardoning Joe Arpaio, though the effect of the pardon was certainly to obstruct the due administration of justice in a pending case and though Trump issued the pardon with specific intent to do precisely that. Similarly, firing former FBI Director James Comey was, in and of itself, not a criminal act but a step that the president had the authority to take.
But the obstruction statutes are a tricky business. By their terms, they generally do not prohibit specific acts alone. They prohibit those acts when taken “corruptly, or by threats or force, or by any threatening letter or communication.” They prohibit those acts when someone engages in them “willfully” and with specific intent to tamper with the justice system. They use words like “corruptly persuade.” The same exact act can be an obstruction of justice or not depending entirely on what the perpetrator of that act intends. Consider the phrase, “That’s a nice house. It would be a shame if something happened to it.” If you’re an insurance salesman, that’s a homeowner’s insurance sales pitch. If you’re a mobster and you’re speaking to a potential witness, that’s a textbook violation of the witness-tampering statute.
Note that you have the First Amendment right to speak those specific words every bit as much as the president has the inherent authority under Article II to manage the executive branch. So the fact that you have the right to say those words does not answer the question of whether you have the right to say them with the specific intent of committing a federal crime. A judge has inherent authority to manage her courtroom, but if she maliciously holds a grand juror in contempt specifically to prevent him from voting in a fashion she doesn’t like on an indictment of a mobster who has befriended her, that presumably violates the obstruction statute that prohibits “corruptly, or by threats or force … [impeding] a grand or petit juror … in the discharge of his duty.”
So yes, the president’s lawyers are correct when they argue that the president isthe executive branch, so presidential obstruction of justice might produce the tautology of the president’s obstructing himself. The Justice Department and the FBI are merely arms of the president, after all. And this might be a compelling answer to an obstruction question where the obstruction takes place entirely within the executive branch.
But here’s where we come to what I think is one significant flaw in the president’s legal theory. Major criminal investigations seldom do take place entirely within the executive branch. Criminal investigations take place in a complex interaction between the Justice Department and grand juries, which are instrumentalities of the judiciary, and they end up in court in criminal proceedings. A facially valid action taken in the service of managing the executive branch, if taken with specific intent to commit a crime in order to influence a judicial proceeding, can theoretically violate statutes designed to protect the judicial function.
To understand this point, let’s consider a few hypothetical examples which all involve facially valid presidential action to supervise the executive branch, but which I think should be understood as obstructions of justice: What if the president offered for sale the dismissal of cases to defendants? This would be bribery, and that the president would be subject to impeachment and later prosecution for that. But now think about the obstruction case that would arise as well. The other participants in this scheme would all presumably be vulnerable to prosecution for obstructing justice, as well as for bribery. Would the (former) president get a pass on this count of the indictment because the dropping of the cases was itself within his power to order?
What if the president directs his Cabinet to do whatever is necessary to shut down the Mueller investigation—not specifying the means or ordering anyone to do anything illegal, but making clear that he will issue whatever pardons are necessary to anyone who effectuates his will. The president, in such an instance, would do nothing but engage in the lawful function of directing the senior officers of the executive branch—without even specifying a particular action, just a particular outcome. Would we really say that the fact that he has the authority to direct the conduct of the executive branch substantively immunizes him from a charge of obstruction? If one of his Cabinet officers subsequently takes dramatically illegal action based on his direction and promise of a pardon, does the president have no criminal exposure here?
Finally, imagine that a federal judge’s daughter works in the Justice Department. And imagine that the president directs Attorney General Sessions to make sure she gets outrageous promotions and that he does so with the specific intent of influencing her mother’s handling of a case he cares about. Imagine, for that matter, that he tells her this explicitly: “I’m taking care of you so your mom will take care of me.” All he would have done, of course, is manage the executive branch. He is as entitled to promote a young Justice Department lawyer as he is entitled to fire his FBI director. Would we really say that the obstruction statutes here do not operate?
Good faith has to matter. At some point, specific intent has to matter, too. That’s what the statutes all say. And I think it’s actually what the Constitution says, too.
The president takes an oath of office in which he promises to “faithfully execute the Office of President of the United States” and he is obliged by the Constitution to “take Care that the Laws be faithfully executed.” The law professors Eric Posner and Daniel Hemel suggest a legal test in which “a president commits obstruction of justice when he significantly interferes with an investigation, prosecution, or other law enforcement action to advance narrowly personal, pecuniary, or partisan interests.” I can imagine other formulations of the same rough idea. The key point, however, is the prosecutor’s obligation to prove—when dealing with a president—that the allegedly obstructive action was taken provably outside the contours of the president’s oath office and his take-care clause obligations. When that happens, the obstruction statutes should apply to the president every bit as much as they do to anyone else—even if he is purporting to manage the executive branch.
This understanding puts a significant burden on a prosecutor—a burden that would require Mueller to prove not merely that Trump took steps that look suspicious or may have been self-interested but that he took them in bad faith and that his actions cannot plausibly be understood to flow from any legitimate presidential-management objective. This burden might not be surmountable in the real world, though it might. But at least in theoretical terms, it is quite different from saying that the president is immune as a matter of law from charges of obstruction for acts within his Article II authority.
To amend Nixon’s crude formulation, it’s an understanding that when the president does it, that probably means that it is not illegal—or at least that its illegality will be hard to prove.