This piece was originally published on Just Security, an online forum for analysis of U.S. national security law and policy.
President Donald Trump’s personal lawyer, John Dowd, now claims that the president “cannot obstruct justice because he is the chief law enforcement officer” under Article II of the Constitution. Dowd’s remarks, reported Monday morning by Axios, have little basis in text or history, and they fly in the face of a decades-old bipartisan consensus: the obstruction of justice statutes indeed apply to the president.
As Eric Posner and I note in a forthcoming California Law Review article, obstruction of justice is a crime with roots in the nation’s founding. The Declaration of Independence charged King George III with “obstruct[ing] the administration of justice, by refusing his assent to the laws for establishing judiciary powers.” That alone is evidence that the founding generation did not believe that heads of state were immune from obstruction charges. And while Article II instructs the president to “take care that the laws be faithfully executed,” that does not give him carte blanche to wield his law enforcement powers any way he chooses.
Trump is not the first sitting president to face accusations of obstruction of justice. During the Watergate scandal, the first article of impeachment approved by the House Judiciary Committee charged Richard Nixon with obstructing justice by endeavoring to influence an FBI investigation into the break-in at the Democratic National Committee headquarters. That article passed the committee by a 27–11 vote, with six Republicans joining all the committee’s Democrats in the majority. And after Nixon’s resignation, the 11 Republicans who voted against the first article of impeachment acknowledged that, in light of subsequent revelations, they believed that Nixon had committed obstruction. Nixon himself conceded at a press conference prior to leaving office that “of course, the crime of obstruction of justice is a serious crime and would be an impeachable offense.” The idea that the president was immune from obstruction liability was never taken seriously even by Nixon’s most ardent defenders.
Nixon’s resignation did not bring an end to obstruction allegations against sitting presidents. During the investigation into the Iran-Contra scandal that engulfed Ronald Reagan’s administration, independent counsel Lawrence Walsh also considered whether obstruction charges should be filed against President Reagan. Walsh declined to bring charges due to problems of proof, but not because of any doubt that the obstruction statutes applied to the commander in chief. And in December 1998, President Bill Clinton was impeached for obstruction of justice in relation to a sexual harassment lawsuit and a federal grand jury inquiry.
While the Clinton impeachment was controversial, the claim that the obstruction statutes applied to the president was not. The House Judiciary Committee’s report said that the first article of impeachment against Nixon had established a “clear precedent” that a president who used his position of power to obstruct the administration of justice committed an impeachable offense. Clinton’s defenders quickly conceded that the obstruction statutes applied to the president. A group of more than 400 law professors sent a letter to Congress opposing impeachment but acknowledging that “[a] President who corruptly used the Federal Bureau of Investigation to obstruct an investigation would have criminally exercised his presidential powers.”
To be sure, the application of the obstruction statutes to the president raises complicated questions regarding the line between enforcement discretion and criminal obstruction. Eric Posner and I have argued that—as a general matter—a president commits criminal obstruction only when he abuses his power over law enforcement for personal, pecuniary, or purely partisan ends. But Dowd’s claim that the obstruction statutes never apply to the President is without merit. Trump is not the first president to face serious allegations of obstruction, and he may not be the last. But so far, he is the only one whose lawyers have argued that—with respect to obstruction of justice—the president is above the law.
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