Does Article II protect Trump from obstruction of justice charges?

Constitutional Law

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Article II of the Constitution is getting some attention as a lawyer for Donald Trump and a Harvard law professor argue that the article makes it impossible for the president to be charged with obstruction of justice.

The argument is that Article II gives the president authority to control the executive branch, including law enforcement and personnel, the New York Times explains. The president couldn’t be charged with obstruction for firing FBI Director James Comey because the judicial branch would have to second-guess whether the president properly exercised his constitutional authority.

Comey has claimed that Trump asked before his firing if he could see his way to letting go of the investigation of former National Security Adviser Michael Flynn, an allegation denied by Trump.

Lawyer John Dowd made the Article II argument to Axios, while Harvard law professor Alan Dershowitz expressed his opinion on Fox & Friends. The Hill and the Washington Examiner covered Dershowitz’s comments, while the Washington Post and the New York Times examined the argument.

Dowd told Axios that the “president cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case.”

Dershowitz went farther in suggesting that Article II also protects the president from impeachment for exercising his law enforcement power. “I think if Congress ever were to charge him with obstruction of justice for exercising his constitutional authority under Article II, we’d have a constitutional crisis,” he said.

“You cannot charge a president with obstruction of justice for exercising his constitutional power to fire Comey and his constitutional authority to tell the Justice Department who to investigate, who not to investigate,” Dershowitz added. “That’s what Thomas Jefferson did, that’s what Lincoln did, that’s what Roosevelt did. We have precedents that clearly establish that.”

For obstruction of justice by the president, you need “clearly illegal acts” such as payment of hush money, telling people to lie or destroying evidence, Dershowitz said. Former President Bill Clinton, for example, was accused of trying to influence potential witnesses not to tell the truth, he said.

“But there’s never been a case in history where a president has been charged with obstruction of justice for merely exercising his constitutional authority,” Dershowitz said.

The Washington Post reports that “experts are dubious” about that argument, “but they are dubious to varying degrees.”

Georgia State University law professor Daniel Franklin said he doesn’t believe Trump can obstruct justice when acting in his authority as chief executive, but he can obstruct justice when he isn’t acting in that capacity.

Duke law professor Samuel Buell told the Times that the Constitution doesn’t allow presidents to use their powers for an improper purpose, such as covering up a crime. “This becomes a kind of ‘the king can do no harm’ argument, which just isn’t consistent with American criminal law or constitutional law,” he said.

Former federal prosecutor Renato Mariotti made a similar point in an interview with Vox. “Just because the president has the power to do something doesn’t necessarily mean it’s lawful for him to do so,” he said.



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