Did President Trump Obstruct Justice by Firing Comey?

President Trump’s lawyer sparked an intense debate recently when he said that the president is incapable of obstructing justice because of the power of the office. The claim came following a presidential tweet that brought up questions about whether the president put himself at risk legally by commenting on his own actions regarding Russian involvement in the 2016 presidential election.

Building a Case

Top Democrats are speculating that special counsel Robert Mueller is currently putting together a case that includes obstruction of justice, one that may implicate Trump. In the tweet, the president claimed that he fired Michael T. Flynn because he discovered that Flynn lied to the FBI about his discussions with the Russians.

Those who believe that Trump obstructed justice are pointing out that the tweet is confirmation that the president was aware of Flynn’s crime. When the White House originally provided a reason for firing Flynn, it said that it did so because the national security adviser provided misleading information to Vice President Mike Pence.

James B. Comey has also claimed that Trump tried to persuade him into stopping the investigation of Russia’s influence on the elections. Later, Trump fired Comey. Trump has denied that he asked Comey to drop the investigation. Now, after the inflammatory tweet, John Dowd, one of Trump’s lawyers, has claimed that it was he who drafted the tweet that Trump posted about firing Flynn for lying to the FBI. Dowd is also the one claiming that under the Constitution, a president cannot obstruct justice.

So, What Does Obstruction of Justice Mean?

A number of federal statutes criminalize behaviors that thwart official investigations. While some instances of illegal actions that block the justice system are specific, such as getting rid of evidence or killing a witness to a crime, the law also features broad, all-encompassing exclusions. For example, several Title 18 Sections make it a criminal act if a person dishonestly “obstructs, influences or impedes any official proceeding.”

What Authority Does Trump Have to Fire People?

As the president, Trump is authorized to supervise law enforcement decisions and fire those who work under him, but if he takes this kind of action for corrupt reasons, then he is obstructing justice. In a 1998 case, an appeals court upheld a lawyer’s conviction after he filed legal complaints and other motions against a government representative who was looking into an illegal gambling situation. According to the court, the defendant’s legal conduct was not lawful because his real reason for filing against the government agent was to protect his own financial interests.

A former federal prosecutor turned teacher, Julie O’Sullivan, pointed out that the power dynamic between the president of the country and the FBI director could escalate the request to stop looking into a case into something that impedes a formal investigation.

Barry Berke, Norm Eisen and Noah Bookbinder, wrote a statement that said, “The fact that the president has lawful authority to take a particular course of action does not immunize him if he takes that action with the unlawful intent of obstructing a proceeding for an improper purpose.”

Dowd’s Interpretation

Alan Dershowitz, a constitutional scholar, somewhat agreed with Dowd’s interpretation of the law. According to Dershowitz, Trump’s act of firing Comey alone should not be considered obstruction of justice because it is within the president’s power to do so. He said, “I think if Congress ever were to charge him with obstruction of justice for exercising his constitutional authority under Article II, we’d have a constitutional crisis.” He went on to say, “You cannot charge a president with obstruction of justice for exercising his constitutional power.”

However, there are a number of experts who contend that the president is not above this area of the law. Ty Cobb, the White House lawyer dealing with the Russia situation, disagreed with Dowd’s assertion. He said, “There is no strategy of which I’m aware to rely boldly on the proclamation that obstruction is always impossible with regard to a president.”

The Constitution has a section confirming that any officer who is forced to leave his or her office through impeachment may be criminally charged. This includes the president, but the text does not specify when the person should be criminally charged.

According to some analysts, Mueller could avoid throwing the presidency into legal uncertainty if he ends up seeking an indictment for the current president by using a sealed indictment, which would delay prosecution until Trump is out of office.

The President and the Constitution

The Constitution does not give Trump the power to cover up criminal actions. Neither constitutional law nor criminal law allows the president to do as he or she pleases. Like everyone else, Trump must follow the law or face the consequences for his actions. If Mueller discovers evidence that Trump obstructed justice, then Trump must be held accountable.

For more legal analysis, follow constitutional law expert Sujit Choudhry on Facebook, Twitter or visit sujitchoudhry.com for more information.

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