Harry Litman is a former United States Attorney and Deputy Assistant Attorney General. In today’s New York Times he authors an op-ed which fairly demolishes Trump’s assertion, via his lawyers, that he cannot be held culpable for Obstruction of Justice, which appears to be one of likely several counts listed on the indictment that may soon bear his name.
The flaw in Trump’s analysis lies in his claim that since as Chief Executive he has the power to terminate any legal inquiry into his own criminality, he thereby cannot be deemed to obstruct justice “no matter his motivation.” This is in fact what his lawyers have asserted. If that sounds preposterous on its face, well, that’s because it is:
This understanding of presidential power is radical and absolutist. It is also unsound and almost certain to be sharply rejected should it ever be proffered in court.
The problem is that Trump’s motivation, be it to protect his alleged “fortune,” his family members, or his own skin, matters a great deal, moreso than the fact that he has the power to shut down an investigation into his criminality:
No tenable account of executive power holds that a president’s purposes in exercising powers accorded under Article II, “to take Care that the Laws be faithfully executed,” have no import. If it were otherwise — if the president had the authority to use his constitutional powers for any reason — it would follow that he could accept a bribe for doing an official act, or, more saliently, extend a pardon to keep a witness from testifying.
The precedent here was established when another venal and criminal Republican Administration sought to obstruct justice with a similar corrupt motivation:
Under Mr. Trump’s view, Nixon would not have been guilty of obstruction for ordering the F.B.I. to stand down on the investigation of the Watergate burglars or paying off the defendants to keep them quiet.
Generally speaking, the decision in United States v Nixon, by a unanimous Supreme Court, established that claims of Executive Privilege must be weighed against the needs of a pending criminal investigation:
“Without access to specific facts,” Burger wrote, “a criminal prosecution may be totally frustrated. The president’s broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.”
Implicit in the U.S. v Nixon decision is the principle that a President is not “above the law,” which is essentially what Trump is asserting here.
The other key case is Clinton v Jones, in which the Supreme Court held that President Bill Clinton could not avoid deposition in a civil case alleging sexual harassment and misconduct because of his “busy schedule,” a claim also being made by Trump here. Again, the Court’s ruling in that case was unanimous, and emphasized its prior decision in U. S. v. Nixon. Again, the precedent was implicit that a President is not beyond the reach of law. As Litman points out:
Subsequent investigations into alleged abuses of presidential power — Iran-contra as well as Whitewater — took it as accepted law that the president is capable of obstructing justice. And while the case of the president can present challenging legal and practical questions of enforcement, both because the president is the head of the executive branch and because of the political levers he can pull, there is scant support among constitutional scholars or in the case law for the president’s drastic argument.
Lastly, Trump has offered the feeble defense that he cannot have possibly had any “corrupt intent”—with respect to urging FBI director to drop the investigation into Michael Flynn’s collusion with the Russians—because he didn’t know that Flynn was under investigation at the time.
That’s a fact question, resolvable by a jury. It doesn’t obviate the cause of action itself. Assuming Special Counsel Mueller brings charges of obstruction against Trump, we can be fairly assured that Mueller’s understanding the facts is…different than that of Mr. Trump.
Litman concludes that none of Trump’s arguments have a realistic chance of succeeding if the Supreme Court does its job:
All three of Mr. Trump’s pillars of defense support no weight. Mr. Mueller may have practical or policy reasons for staying his hand in finding obstruction, but he needn’t worry about the proffered legal impediments. They are all losers.
It’s important to keep in mind that as disturbing as it is to witness the unprecedented degree and scale of corruption and criminality of Trump and his Administration, our Courts–which are tasked to enforce the law as it exists, not the way Trump wishes it to be– have, for the most part, been down this road before.