Editor’s Note: Paul Callan is a CNN legal analyst, a former New York homicide prosecutor, and current counsel at the New York law firm of Edelman & Edelman PC, focusing on wrongful conviction and civil rights cases. Follow him on Twitter @paulcallan. The opinions expressed in this commentary are his own.
Can the president of United States be prosecuted for obstruction of justice under the US Constitution? The answer is yes, he most certainly can – though the initial punishment for such an offense is impeachment and removal from office. The Constitution enables impeachment for “high crimes and misdemeanors,” but does not define what those offenses are, though they could in theory include obstruction.
The more complicated question is the one that comes next. Can a sitting president face criminal prosecution for obstruction of justice? According to experts who spoke to the ABA Journal, the prevailing view among legal scholars seems to be that a president can be prosecuted only after he no longer holds the title of “President of the United States.”
On Monday, President Trump, as a part of his usual frenetic pattern of Twitter activity, urged Americans to watch his favored news network, Fox, where Harvard professor of law emeritus Alan Dershowitz was trotting out his illogical theory that the president cannot be indicted for “obstruction of justice” because, under Article II of the Constitution, the president is responsible for all federal law enforcement investigative activity. Mr. Dershowitz ominously warned that prosecuting the president for such an offense would lead to a “constitutional crisis.” Mr. Trump’s tweet used Dershowitz’s appearance to repeat his favorite refrain, that Robert Mueller’s investigation into ties between his campaign and Russia is a “witch hunt.”
The President may have wide constitutional powers, but he is not above the law. If he were to use the constitutional powers suggested by Professor Dershowitz as a matter of presidential discretion under Article II, he would distort the system of checks and balances so carefully designed by the Founding Fathers to keep the power of the nation’s chief executive constrained by legislative and judicial branches of government.
The Dershowitz argument, in a nutshell, is that since the Constitution has put the president in charge of federal law enforcement in the United States, he cannot be prosecuted for exercising his discretion to direct how law enforcement authorities use their limited resources. Proponents of the Dershowitz view – Mr. Trump deems his segment a “must watch” – might cite the Obama administration’s reallocation of Justice Department resources as an example of the perfect legality of a presidential decision to shift federal law enforcement investigative priorities from one kind of crime to another.
President Obama promised, for instance, to “vigorously pursue” hate crimes and civil rights cases.
His attorney general, Eric Holder, enthusiastically followed his boss’s stated policy objective in pressing forward with federal investigations of many high-profile police shooting cases, such as the Michael Brown case in Missouri and the Trayvon Martin case in Florida. Neither case resulted in any federal indictments, though the Michael Brown federal investigation did generate a civil action to compel a reorganization of the Ferguson, Missouri police department to reduce “racial profiling.”
Unquestionably, though, Mr. Obama’s increased emphasis on civil rights and hate crime investigations necessarily required the shifting of FBI resources away from other types of investigations, into crimes such as drug dealing, money laundering, and bank robbery, among others.
Of course, no one could seriously argue that such a priority resetting by a president was an “obstruction of justice” because the feds might be now pursuing fewer drug dealers, money launderers, and bank robbers to go after more civil rights offenders. This is not an act of criminality but the pursuit of an entirely lawful, legitimate policy objective. And this is where the Dershowitz argument falls on its face.
If Robert Mueller’s investigation conclusively establishes that the President deliberately fired FBI director James Comey to terminate a criminal investigation that would have led directly to the White House – and possibly to the President himself or those close to him – this is an “obstruction of justice” for which even the President and his staff can be prosecuted.
If the President fired Comey to protect himself or his allies from criminal prosecution, there would be no legitimate law enforcement policy objective serving the interests of the American people. He would merely be aiding and abetting in a coverup in pursuit of a purely personal objective, no different than accepting a bribe.
Richard Nixon learned this lesson the hard way, when he was forced to resign for the disgraceful misuse of his law enforcement powers and authority in covering up Watergate and pursuing those on his infamous “enemies list.” It is true no president has ever been criminally indicted while in office. The preferred route has been impeachment first, leaving open the possibility of criminal charges after removal from office. Nixon escaped criminal prosecution after his resignation from office because his successor, Gerald Ford, pardoned him.
Perhaps the President could add Nixon’s near-miss to his next “witch hunt” tweet for the sake of accuracy. A link to Nixon’s famous “I am not a crook” speech would also be a helpful reminder of the fate of presidents who abuse their constitutionally granted powers.