Now You’re Talking My Language

Ken AshfordConstitution, Courts/Law, L'Affaire Russe, Trump & AdministrationLeave a Comment

Trump takes a foray into legal argument:

Yeah, he’s actually quoting his Fox TV attorney, who apparently said that on Smerconish.

The questions are an intrusion into the president’s Article II powers under the Constitution, to fire any executive branch employee. To ask questions, as Mr. Mueller apparently proposes to do, about what the president was thinking when he fired Comey, or Flynn, or anybody else, is an outrageous, sophomoric, juvenile intrusion into the president’s unfettered power to fire anyone in the executive branch. It is a symptom of how ridiculous this appointment was by [deputy attorney general] Rod Rosenstein when he made the appointment with no evidence of a crime.

I like that Trump stopped typing the sentence once he got to the word “sophomoric”.  He probably couldn’t spell it.

So, Trump (and Digenova and Dershowitx and Trump’s former lawyer John Dowd) apparently all believe, as a matter of law, that the President has “unfettered” power to fire anyone in the executive branch. It comes up here of course with respect to Trump’s firing of Comey as an attempt to obstruct justice (i.e., end criminal investigations against him).

One thing worth noting is that these lawyers are not denying that Trump fired Comey to end the investigation. They are simply saying that it was not illegal. Interesting strategy. I wonder if that will change.

But to the legal issue at hand — is it true, legally speaking, that a sitting president has “unfettered power” to fire whoever he wants?

Well, it has never been answered directly by the courts.

However — although impeachment proceedings are civil, not criminal in nature — articles of impeachment voted against both Nixon and (Bill) Clinton charged obstruction of justice as a violation of the president’s constitutional obligation to take care that laws are faithfully executed.  So that is some indication that Congress believes that a president can obstruct justice, even in the exercise of his powers.

The mistake that Digenova, etc. make is assuming any power is unfettered. But that’s not how things work. Imagine that you have a box full of documents that belong to you. You would ordinarily be have the “unfettered power” to shred those documents if you choose to do so — shredding them alone is not a crime. But if you exercise your control over your own records in order to impede a criminal investigation, now it may be unlawful obstruction.

Most legal scholars, especially conservative ones, are loathe to “read in” to the Constitution — i.e., to make assumptions that grant more power to government unless the Constitution specifically says so.  In the absence of a clear constitutional command to the contrary, a President is liable for his criminal acts, including obstruction.  If his actions and intent fit the legal definition of obstruction of justice, which is defined very broadly:

(a) Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b). If the offense under this section occurs in connection with a trial of a criminal case, and the act in violation of this section involves the threat of physical force or physical force, the maximum term of imprisonment which may be imposed for the offense shall be the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case.

(b) The punishment for an offense under this section is—
(1)  in the case of a killing, the punishment provided in sections 1111 and 1112;
(2) in the case of an attempted killing, or a case in which the offense was committed against a petit juror and in which a class A or B felony was charged, imprisonment for not more than 20 years, a fine under this title, or both; and
(3) in any other case, imprisonment for not more than 10 years, a fine under this title, or both.

18 U.S. Code § 1503

So, there is certainly no carve-out for the President there, and none in the Constitution.  Hence, the well-worn statement “The President is not above the law.”

He’s not.

So Trump’s tweet? Fine, but…