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. Same old story, when a republican President does it….its not illegal.

  2. People are overthinking this. Of course a :President can be convicted of obstruction of justice. The problem specific to this case is Mueller/Comey and staff LOVE to trick bag people into Trumped up charges like they did w/ Martha Stewart and Scooter Libby.

    1. Yes, and here’s a golden classic:

      “It’s beginning to look a lot like Fitzmas”

      1. Hate what? That the most ignorant, incompetent, dysfunctional, dishonest, psychopathic humans gravitate to political office?

        1. Poor 🚼 baby.

          What’s the matter, not having a good morning?

          Here, this will cheer you up.

          GEORGIA – GOP WIN


          GOP 5-0
          DEMS 0-5

          TRUMP 2020
          PENCE 2024
          PENCE 2028

          Hope that helps.

        2. But she didn’t get elected, Doglover, so it’s all okay.

          1. Cuz the voters weren’t russian to the polls to vote for Crooked H like she assumed they would 😉

    1. Where’s you picture of LBJ? He got us into Viet Nam. Or Trumawho got us into Korean War? Actually more Democrat prsidemts have gotten us imtto wars than Republicans..

  3. You’ve got a separation of powers argument but its a tenouous one. The inevitable result of this logic is that the President is immune from any prosecution which is tantamount to saying he is the law. Didn’t fly with Nixon, won’t fly now.

    1. Is it true mespo that congress can impeach on absolutely nothing? Of course there would need to be a charge of something but could congress technically run the President out on a big nothing burger if they have the votes?

      1. “High crimes and misdemeanors” is whatever Congress says it is. Treason is well-defined in the law and was when the Constitution was written.

  4. I used to love, Newt. Admired his command of the English language. Was thrilled when he ran for Pres. Think I even contributed.! I receive his comments and emails, for NOW……Alas, since he became embedded with the Orange One..????! ALL, objectivity has disappeared. Just like FOX News, Newt can say nothing, that would upset the KING.!! When he did say something to upset him, Newt was sidelined and instead, Calista became eligible for a job.

    Such a disappointment.!! I really thought Newt was one to hold on to his principles. Doing contortions now, with regard to the LAW, is not becoming of him.!!

  5. A distinction must be made here. The argument made by Professor Dershowitz is that a President does obstruct justice by doing an act which the Constitution allows him to do, i.e., firing an FBI director, regardless of the reason. I do not hear anyone saying that a President can never be prosecuted by the federal government for any federal crime, even obstruction of justice, simply because he is the head of the executive branch of government. Put another way, firing Comey is not obstruction of justice as a matter of law. It matters not why the firing was done. Dershowitz is right. I hate to admit it, but Dershowitz is right.

  6. There is nothing more offensive to our Constitution and our founders than the argument that the president is above the law. The Constitution does not allow the President of engage in illegal acts and avoid the consequences of thise acts.. It does not permit him to interfere with a an investigation into wrong doing. There is no support in the Constitution for the claim that “when the president dies it it is legal.” The president is not the king. Arguments to the contrary are wrong.

    I know there are some who want very much to allow Trump to literally stand in the middle of Fifth Avenue and shoot someone because it suits their purposes but that doesn’t make it right.

    1. The Constitution does not allow the President to engage in illegal acts but apparently it does allow the president to demonstrate complete mental dysfunction and irresponsible recklessness.

  7. Alan Dershowitz said that a president couldn’t be convicted of obstruction of justice for exercising his constitutional authority. He also said that a president could be convicted of obstruction of justice for doing such things as destroying evidence.

    1. Unfortunately we do. Americans elect a king like president. Most Americans want a benevolent dictator of sorts, someone that can provide a god like presence. In parliamentary systems, much more democratic, the Prime Minister is simply the head of the party. The Prime Minister must be elected by his or her constituency and appointed by its party. With the approval of the party the Prime Minister then appoints the heads of the various departments from within the party. Those heads typically have been developing expertise in those departments through governing or as part of the shadow government. The American system of heads of the departments that most concern the people being appointed by a king like leader, in this case the worst sort of oligarch possible, at the discretion of the leader, even if needing the approval of the party, is closer to a king and its court than a democracy. It may be time to rethink our system of government, if America has the balls.

      1. Political decisions have always been made by those who provide the largest bribes and threats to those in power. Can the public become unified enough to create larger bribes and threats than the elite are able to generate?

        1. Of our peer nations, the US is the only one that allows concentrated funding of candidates. Canada, Great Britain, France, Germany, etc. limit contributions. In most cases the government itself funds the campaigns of the candidates with equal time on public media, financial contributions based on voter support, and basically little to no circus like in America. There is nothing democratic about our system of electing our representatives. From the beginning they do not represent the people. They represent their teats, the special interest groups and oligarchs.

          As damaging and disrespectful this is to say, this is the way it is. We live in an oligarchy with a few percent of the population coming first and the rest serving those top few percent. In ancient Rome the games and other circuses both political and athletic placated the ‘mob’. Today in America it is the circus that is our system of elections, and the attention to the downfall of the leaders who are elected for us. The first step is to grow a pair and abolish any funding over a small amount from each registered voter. The candidates should be restricted to voicing their opinions on equal media coverage. What a hoot that would be, forcing the wannabes to actually say something intelligent. Unfortunately, ratings would plummet. That, is the spooky thing.

  8. God save us from lawyers of an era that produces the filth of the msm

    1. And:

      I went out with a waitress…
      That I hardly knew.
      How was I to know…
      She was with the Russians too?

    1. So the special prosecutor turns the evidence over to the House Judiciary committee which draws articles of impeachment. The Senate prosecutes and finds him guilty. He’s out of a job. No longer Prez. Special prosecutor can use rest of evidence for a RICO charge. Former prez goes to luxury prison. Or Pence ( or next prez, depending on how long the process, takes) grants him a pardon for all crimes real or imagined.

      1. Or how about this scenario: Trump steps down and Pence becomes President. Pence pardons Trump and makes him VP. Pence resigns and Trump becomes President. Trump appoints Pence to be VP.

    1. beating a democrat in a fair election. Many crimes were committed just tonight (in GA and SC). For these crimes the left and its’ willing sycophants in the media will make our entire nation pay and pay dearly.

      1. Democrats are now 0-5

        They blamed the rain on their piss poor turn out.

        Come to LA (Lower Alabama) if you want to see some real rain.

      2. Fair election? 10s of thousands of new minority voter registration forms were not recorded and the offices of those doing the out reach were raided. One of Handel’s jobs was as Secretary of State, you know, the person in charge of elections. If you can’t win one way, try another.

        1. Right, and maybe they should investigate Karen Handel for colluding with the Russians as well?

        2. bettykath, Ossoff’s celebrity sponsors outspent Handel’s campaign 7 -1. They should have been able to record thousands of illegal votes for that amount of money.

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