The lines separating the legal from the political are increasingly blurred. Policy questions that used to be resolved through political debate are now litigated through the courts, while political debates now consist of endless allegations of illegal acts. The result is a lot of lawyers who fancy themselves politicians and a lot of politicians who fancy themselves lawyers.
The “obstruction of justice” allegations surrounding President Trump provide an interesting case study.
“Obstruction of justice” means something intuitive in lay English: a conscious act intended to prevent the justice system from functioning properly — specifically, a guilty person attempting to hide the truth of his own guilt by preventing someone else from discovering it.
Anyone is free to reach the political conclusion that Trump has done this. Many find the president’s firing of FBI boss James Comey odd enough to imply Trump is engaged in some sort of cover-up as it relates to the FBI’s ongoing investigation of Russian interference in the last election. Many of those same people find Trump telling Comey he wanted to see the FBI “let Flynn go” when Michael Flynn remains such an important figure in the Russia conspiracy allegations stronger evidence yet. People are equally free to conclude Trump should be impeached for this, since impeachment was always intended to be a political tool to punish presidents for ill behavior as determined by the political branch of government — ie, Congress.
The world we live in today, however, presumes scandals — especially impeach-worthy scandals — are only legitimate if they clear a certain threshold of legal seriousness, which is to say, if they rise to the level of a criminal offense. From this perspective, the obstruction of justice charge is deeply ambiguous, as we can see by considering the arguments of two prominent lawyers who know a lot more about this thing than you or I.
The first is Philip Allen Lacovara, who served as legal counsel to the special prosecutors who investigated President Nixon during the Watergate scandal. In the Washington Post, Lacovara asserted that James Comey’s testimony was “evidence sufficient for a case of obstruction of justice.”
Lacovara alludes to the obstruction of justice section of the US Code (18 § 1503), which defines obstruction of justice quite sweepingly (an offender is described as anyone who “corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice,” to cite but one excerpt). In Lacovara’s mind, Trump’s actions in regards to Comey rise to this level.
However, Lacovara is forced to take a lot of air out of his own argument when he concedes, near the end of his article, that “whether a sitting president may be indicted while in office is an open question.” Lacovara personally believes the answer to that question is “yes” and hopes Robert Muller, the independent counsel in the Russia investigation, will “reach the same conclusion that I reached in the Nixon investigation — that, like everyone else in our system, a president is accountable for committing a federal crime.”
Famed lawyer Alan Dershowitz wrote an editorial in the Washington Examiner that is deeply critical of Lacovara’s conclusion. Dershowitz does not believe a president is “accountable for committing” the 18 § 1503 federal crime of obstruction of justice because the president holds unique powers in the US constitutional system that cannot be constrained by the US Code.
Specifically, Dershowitz notes that because all employees of the United States Department of Justice are subordinate to the authority of the president, including investigators and prosecutors, the president possesses full right to “tell them what to do, whom to prosecute and whom not to prosecute,” as well as fire or pardon them.
Dershowitz doesn’t seem to think this is a great feature of the US system — he speaks affectionately of nations like Britain and Israel where there is more distance between federal prosecutors and the elected head of government — but notes it’s nevertheless America’s reality. He also seems to think a sitting president can be indicted for a criminal offense, or at least has the capacity to commit them. He notes President Nixon directed his aides to “lie to the FBI” which violates a different section of the US Code, namely 18 § 1001, “fraud and false statements” but portrays this as something different, and more prosecutable, than “obstruction of justice,” legally defined.
Trump’s critics, he concludes, “should not be searching for ways to expand already elastic criminal statutes and shrink enduring constitutional safeguards in a dangerous and futile effort to criminalize political disagreements.”
At one time it was assumed a president was almost completely above the law, but in 1997 the Supreme Court unanimously ruled Paula Jones could sue President Clinton for sexual harassment, thus establishing a sitting president’s vulnerability to civil litigation. It is possible to imagine a future Supreme Court ruling that the president doesn’t have immunity from criminal indictment either, yet this is ultimately moot if, in Trump’s case, the president is constitutionally ineligible of committing obstruction of justice in regards to the Justice Department’s Russia investigation because of how the Department of Justice hierarchy works.
Trump’s opponents have chosen to prosecute a political scandal as a legal one, and they seem destined for disappointment as a result.
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