In the coming weeks, I will be addressing a number of novel constitutional issues that are being raised in relation to the Russian investigation. The first such issue has been widely discussed: is there a constitutional barrier to any federal charge against President Donald Trump for obstruction of justice.
Here is my recent column in USA Today:
With the recent leak that special counsel Robert Mueller is investigating President Trump for possible obstruction of justice, a new objection has arisen in the cable news echo chamber. Some experts have argued that a president simply cannot be charged with obstruction since he is the head of the executive branch. Ever. As a result, they are calling for an end of the Mueller investigation as constitutionally unsound.
For the record, I have long argued that the current facts about Trump’s statements or actions would not support a compelling case for obstruction. While I supported the appointment of a special counsel after the firing of James Comey as well as the investigation into obstruction, a charge on the current facts would stretch the criminal code to an uncomfortable and almost unrecognizable degree. However, I do not agree that a president, as a categorical matter, could never be criminally charged with obstruction.
Individuals ranging from Alan Dershowitz to former House Speaker Newt Gingrich have voiced the constitutional argument against an obstruction charge. Gingrich stated it simply: “[T]echnically, the president of the United States cannot obstruct justice. The president of the United States is the chief executive officer of the United States. If he wants to fire the FBI director, all he has to do is fire him.” Dershowitz also disagreed with the suggestion that “a president be indicted for obstruction, which is simply doing his job, being the head of the executive branch.” One of Trump’s personal lawyers, Jay Sekulow, insisted that “being investigated by the same department” — the executive branch — is “not constitutional.”
Many commentators went after Gingrich because he voted to impeach Bill Clinton on obstruction grounds. Richard Nixon also faced a couple impeachment articles containing obstruction allegations. In fairness to Gingrich, the standard for indictment and impeachment is different. A president can be impeached on grounds that would not constitute a crime or support a criminal conviction.
Their point is that, as the head of the executive branch, the discretion exercised by the president is inherent to his Article II powers and cannot be by definition a violation of the federal laws left to him to enforce. However, the violation of federal law is not within the scope of the authority given to a president.
Sekulow’s argument suggests that Trump cannot be investigated, let alone charged, for any federal crime. It is not clear how far this Nixonian argument would go. Would this mean Attorney General Jeff Sessions could not be investigated for federal crimes as the head of the Justice Department or IRS Commissioner John Koskinen could not be investigated for tax evasion? The special counsel provision is designed to allow for the investigation of administration officials by someone outside of the department.
Even though a president has discretion to fire an FBI director, he cannot take official actions — even discretionary actions — for a criminal purpose. Thus he cannot fire the IRS commissioner to stop him from auditing his personal taxes. Of course, this also means that, absent clear evidence of criminal intent, a president has a low threshold to clear in justifying a decision to fire someone like Comey.
It is perfectly reasonable for Sekulow to make this argument in court. There are unresolved issues left over from the Nixon period. However, the argument goes too far. It would mean that, even with an outside special prosecutor or counsel, a president could not be charged with any federal crime from bribery to bank robbery to murder. It would mean that a massive immunity provision is part of the Constitution without a single express word or any record of such an intent in the Constitutional Convention.
It would also be at odds with the practice of every state in the investigation of governors (despite their being the chief executive officer of the state). It would also contradict the treatment of both congressmen and judges. Members of Congress have express immunity from prosecution but can still be prosecuted for crimes outside of their legislative duties.
A president obstructing justice is not simply failing to “do his job” but disrupting the job of others who have sworn to uphold our laws. The suggestion that such a charge is akin to accusing the president of obstructing himself ignores the various layers of federal enforcement of laws and the obligations of those below the president to seek justice (even in the face of presidential opposition).
It is certainly true that the president would have a variety of defenses to a charge of obstruction, including that he is entitled to direct the operations and personnel decisions of the Justice Department. Courts have already set a demanding standard for showing an intent to “corruptly influence” an investigation or proceeding and the president’s inherent authority would make this showing even more difficult. However, that does not mean that such a showing could never be made.
President Trump would be far better off contesting the fact of the crime rather than the ability of anyone to prosecute him for it.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter @JonathanTurley.