Columns, Congress, Constitutional Law, Criminal law

Is President Trump Immune From An Obstruction of Justice Charge?

donald_trump_president-elect_portrait_croppedIn 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.

NewtGingrichIndividuals 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.

88 thoughts on “Is President Trump Immune From An Obstruction of Justice Charge?”

  1. Some Watergate legal experts have claimed that Judge Sirica intended to put Nixon in prison. The only reason Nixon didn’t serve prison time was that Gerald Ford preempted justice with a pardon.

  2. ‘A charge on the current facts would stretch the criminal code.’ Albeit, absolutely true, have political, partisan, lawyers not attempted to do just that over the years? Thus, there are a multiplicity of ‘unresolved issues’ facing our nation & legal system. For example, the attempts & success in circumventing the law by former president Obama based on executive privileged. Or, the lickety-split ability of the Clintons to avoid being charged or investigated for any dubious, Clinton Foundation activity. In short, it seems we have a set of selective laws depending on who we know & our ability to pay!

  3. As I read this comment my sense is that you (Turley) have not squarely stated or addressed Dershowitz’s point. He says that Trump can’t be charged with obstruction in virtue of acting within his prerogatives regardless of motivation, however it’s characterized, but he then goes on to say if in so acting Trump commits a related federal crime, say bribing or intimitidatimg witnesses, or suborning perjury, then obstruction will lie against him. To be clear, Dershowitz is *not* saying that regardless of the commission of a related federal crime there can be no obstruction charged against a president otherwise acting within his authority. Simply put, no criminality lies in Trump doing what he’s constitutionally empowered to do.

    If you actually set out Dershowitz’s position correctly in your post and I’ve missed what you said, then my apology. However, if I’m right in thinking you haven’t given his position full shrift, then I’d be obliged to see the point clairified by you and see what answer, if any, you make to it.

    All said respectfully.

  4. The only Constitutional remedy for Presidential misdoings: Article 2, Section 4 The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

  6. igpres, the lib prog Dims think that the accusation is all the proof they need. All they are doing is the same old propaganda of tell a lie long enough & someone might actually believe it.

    Mr. Turley, in future parts of your article are you going to show what the law says about Mr. Trump’s ability to ban immigration, fire people, what Mr. T has to have done to actually have obstructed anything & any real proof that Mr. T has actually broken any laws? “Such and such an agency says” is not proof of the fairy tale ‘Russia connection’.

    Thank you.

    SamFox

  7. why establishment-backed corporate clown Ossoff lost — despite record-setting spending in Georgia’s special election. Two POVs – from a Progressive and a Libertarian – IMO they are both spot-on

    50+ million could have bought a lot of water for the denizens of Flint, Wilmington, NC and other places where the water has been poisoned. The Dems don’t care.

    https://www.youtube.com/watch?v=dxeAWyYiPHM

    http://www.zerohedge.com/news/2017-06-21/dear-democrats-media-icymi-last-night-was-referendum-you-not-trump

  8. Can you please address the novel issue that this Russian crap is a bunch of junk?

    1. Good Q Laurie.

      And address the specific statute or law Mr. Trump is being accused of breaking? None of the accusers of Mr. T ever address that part. They are accusing, but not defining, what law Mr. T has violated.

      The real obstruction is coming from the Dims who are crying about losing & trying to gin up opposition to any thing Mr. T wants to accomplish. Looks to me like the Dims are so afraid that if Mr. T succeeds in his America First agenda they may not be in the White House for a very long time.

      Only those who lack any objectivity support the Dims & the violence they have brought to the table. From obstruction of free speech via riots at colleges to the shooting at the ball field…Dims are ramping up to shut down Mr. T & conservatism because when the free market is restored their all powerful central government plans will be trashed.

      One good thing that has come is that we now know the ‘deep state’ & fascism is alive & well in the Dim ‘party’. Some RINOs like J McLame & Lindsey Grandma are part of the problem. Then there is Paul CINO Ryan…

      SamFox

  9. Illuminating column.

    As for the Russian investigation, it’s a sideshow: to heighten tension with yet another scapegoat when we’ve been the “midwife” in others’ elections since the Monroe Doctrine became a household prayer; and 2) to avoid the massive voting irregularities if not fraud in 2016 on an abject US public.

    Remember this:

    1. Yup, Nuland – HRC’s neo lib/neo con “girl” – also Biden’s son got a lucrative contract.

  10. Mueller, Rosenstein, their staff of Clinton donors et al.

    must be impeached and convicted

    for abuse of the power of government against the People,

    as a conspiracy to conduct a coup d’etat in America,

    through execution of a scheme to falsely accuse and

    illegally remove a duly elected President of the United States.

  13. I disagree Professor. After Clinton v. Jones, should Trump commit a crime, I believe that he may be prosecuted for it after leaving office. While this is no bar to investigation (as opposed to prosecution), his position as head of the Executive Branch allows him to terminate any investigations under his direct control at his discretion. If he did so for a corrupt purpose, however, that could form the basis for prosecution as well (after leaving office).

    To allow otherwise would grant too much power to the President’s subordinates (e.g., AG, FBI Dir.). It would also divide the Executive Branch in a manner I think unconstitutional. (See Scalia’s dissent in Morrison v. Olson.) If the situation is dire, Congress can always conduct its own investigation, impeach, and remove. The whole framework is elegantly simple, and I don’t see why it need be more complicated than that.

    1. So President Trump could murder, rape, steal, give away our nuclear secrets, and who knows what else – and there is no remedy besides impeachment?

      In my opinion, the reason that the Constitution does not consider the case of the President being a “common [or uncommon] criminal,” is that the framers would never have imagined that an amoral, immoral, mendacious, and utterly self-serving individual could possibly be elected President. Donald, you’re no George Washington !

      1. “…framers would never have imagined that an amoral, immoral, mendacious, and utterly self-serving individual could possibly be elected President.”

        Once again the words you use to describe Trump actually describe Barack Obama. Obama ain’t the man you seem to think he is. Neither is Trump.

  14. Is it obstruction of justice to move all of the presidential documents to a presidential library, and seal them away from the public for 5 years?

    Asking for a friend.

    1. And if that presidential library won’t actually be built until 2021, where are the documents being kept in the meantime? In your house? Or the National Archives? Won’t work, but nice coverup attempt by the Obama team.

      1. The sad part, TBob, is that he will get away with it. Just like everything else that rotten traitor has done.

        1. You’re probably right, but let’s see what happens. Judicial Watch says that President Trump has the authority to request the documents and bring them back in from Obama’s attempted coverup scam. Trump needs to aggressively go after them.

    2. Ryan should get off of his —- — and exercise the ultimate power, the power of the People, in the People’s House, the Congress, and immediately pass Emergency Legislation as a Congressional Override of this obstruction of justice perpetrated by Obama.

      Obama, Hillary, Rice, Abedin, Farkas, Debbie “Seth Rich” Schultz, Lerner, Holder et al. must be brought to justice.

      All roads lead to Obama.

    3. yeah, FFS – and how bout those HRC emails relating to the TPP that Obama had sealed until after the election. I am waiting to see those appear.

    4. On the other hand, I’m sure that the contents of a “Trump Presidential Library” could easily fit into a single file cabinet. Tweets don’t take up much space.

    1. PROSECUTE U.S. / ISRAELI WAR CRIMINALS

      America needs the prosecution of prominent members of the political, military, judicial, media and other economic leadership of the U.S. Government & Israel, who planned, carried out, or otherwise participated in the U.S / Israeli war crimes.

      NUREMBERG TRIALS OF WASHINGTON, DC

      http://www.history.com/topics/world-war-ii/nuremberg-trials

      Nazis in the dock at Nuremberg
      This is where the U.S. / Israeli War Criminals should be

      http://buenavistamall.com/nurembergdock.gif

      1. Do you have any thing specific in mind or are you just having an anti-semitic fit?

        1. Anti-Zionism is NOT anti-Semitism

          Judaism Rejects Zionism and the state of Israel. Anti-Zionism / Anti-Israel are not Anti-Semitism. Zionism is not Judaism. All Zionists are not Jews

          Zionists are trying to conflate Israel, Zionism, Jews, Judaism and Anti-Semitism. Real Jews are not Zionists, they reject Zionism and are our brothers in this struggle

          PROSECUTE U.S. / ISRAELI WAR CRIMINALS
          PROSECUTE THE ZIONISTS AND AMERICAN TRAITORS FOR WAR CRIMES AND TREASON

          America needs the prosecution of prominent members of the political, military, judicial, media and other economic leadership of the U.S. Government & Israel, who planned, carried out, or otherwise participated in the U.S / Israeli war crimes.

          NUREMBERG TRIALS OF WASHINGTON, DC

          Recently at Brooklyn’s Barclay Center 20,000 Jews protested against Zionist Israel

          http://buenavistamall.com/barclayjews.jpg

  17. Just the extreme left pushing a fake narrative.
    Despite spending millions on election endeavors
    The Dems.can’t win.
    Quite a remarkable success story for the Republicans.
    No crime no impeachment.

    1. Extreme Left: anyone who doesn’t support Trump’s effort to advance the interests of the 1%.

      1. billmc, that Dim left prog talking point is proof of nothing.

        SamFox

        1. Sam, not only is it proof of nothing, it is an empty, meaningless, throwaway talking point. But, OTOH, that’s all they’ve got.

  18. I don’t think Congress can avoid the question of what, if anything, is being obstructed. The president is not “obstructing” justice unless he is trying to prevent the discovery of SOMETHING bad. But if the public never gets a handle on what that is, then nothing was obstructed at all. Right now, the investigation is about “meetings” and “conversations” and “omissions”. But of what?? Substance must be revealed; there will never be an “obstruction” impeachment without it.

    1. My own opinion is that the SOMETHING will be evidence of massive financial dealings between the Trump organization and Russian interests. And that he will impede and obstruct as much as necessary, to keep the details from coming out.

        2. So just how was the Trump organization able to fund all those development projects, when US based banks wouldn’t touch them?

Comments are closed.