The controversy over the firing of former FBI Director James Comey is fueling vigorous debate among constitutional scholars on two key points: The application of the obstruction of justice statutes and the related issue of whether a sitting President can be indicted.
These issues, however, may turn out to be of secondary importance.
Instead, the biggest question facing Special Counsel Robert Mueller may be whether the actions of President Donald Trump amount to an “abuse of power” for which an article of impeachment is warranted. This is because there is no debate that, if a president’s corrupt abuse of the powers of his office were to rise to the level of a high crime or misdemeanor, the president’s conduct could be referred to the House of Representatives for consideration of articles of impeachment.
Scholars have long debated whether a sitting president can be indicted while in office. Watergate Special Prosecutor Leon Jaworski started the modern debate in April 1974, when he argued before the Supreme Court in United States v. Nixon that it is an “open and substantial question” whether a sitting president is subject to indictment.
More recently, Eric Freedman of the Maurice A. Deane School of Law at Hofstra University argues that the notion that a sitting president is immune from prosecution is “inconsistent with the history, structure and underlying philosophy of our government, at odds with precedent and unjustified by practical considerations.”
The Justice Department disagrees. In 1973, and again in 2000, the Office of Legal Counsel, which serves as legal adviser to the President and all executive branch departments and agencies, authored two opinions reflecting its belief that it would be unconstitutional to indict a sitting president. Their view is that an indictment would interfere impermissibly with the president’s ability to carry out his constitutionally assigned functions and that Article I, Section 3 of the Constitution provides that only after a person is removed from office by impeachment and conviction shall that person be liable and subject to indictment, trial, judgment, and punishment.
Even if a president could be indicted, there is vigorous debate about the application of the obstruction of justice statutes to a president when he exercises his constitutionally granted powers.
Alan Dershowitz argued in a June 8 op-ed in the Washington Examiner that, even if the President fired Director Comey with corrupt intent (for example, to terminate the investigation of General Michael Flynn), he cannot be charged with statutory obstruction of justice because “a president cannot be charged with a crime for properly exercising his constitutional authority.”
Professor Elizabeth Price Foley of the Florida International College of Law, writing in The New York Times on May 17, 2017, agrees: “… as distasteful as the president’s statements may be, they do not constitute obstruction of justice.”
Eric Posner of the University of Chicago Law School disagrees. In his June 9, 2017 blog post he notes that, while Dershowitz’s argument is “superficially appealing,” it is not correct if the president acts with corrupt intent. Professor Rick Pildes at New York University School of Law, writing in Lawfare blog on the same day, agrees, arguing that the Supreme Court decisively rejected the Dershowitz argument in Morrison v. Olson when it upheld the constitutionality of the Independent Counsel statute.
All of this back and forth among the law professors, while interesting, could be beside the point. If a special prosecutor were to conclude that the evidence required that a case be brought against a president, the most likely course of action that the special prosecutor would pursue would be to recommend that the House consider articles of impeachment on the basis of an abuse of power.
According to CNN and the Washington Post, Mueller is just about to begin interviewing witnesses.
To know whether this is even probable, the matter needs to be investigated fully. Right now, the investigation is in its early stages and the end result could be a finding of no abuse as readily as one of abuse.
At this juncture, at least 10 factual questions require clear answers before any decision can be made:
Did the President make repeated requests of loyalty of former FBI Director Comey, and, if so, was Comey fired because the requests went unheeded?
Was the former FBI Director corruptly “ordered” to end an active criminal investigation of General Michael Flynn by the President and, if so, what was the President’s motive?
Is it true that the President asked Chief of Staff Reince Preibus to request that the FBI Director push back against media stories implying that the President was under investigation to influence its outcome?
Is it true that the President also solicited CIA Director Mike Pompeo, Admiral Michael Rogers who heads the NSA, and Director of National Intelligence Dan Coats to request that the FBI Director push back against media stories implying that the President was under investigation to influence its outcome?
Is it true that Director Coats and other intelligence community officials were asked by the President to intervene with the FBI Director for the purpose of ending an active criminal investigation?
Did the White House repeatedly breach the Justice Department’s communication guidance governing its interaction with the FBI about an active investigation? If so, why?
Was Acting Attorney General Sally Yates fired for her intervention in the matter of General Flynn?
Were the initial explanations for the firing of Acting Attorney General Yates and FBI Director Comey pretexts that were intended to conceal the true reasons for the President’s actions?
Did the President surreptitiously tape his Oval Office conversations, as suggested in his tweet? If so, what do the tapes reveal?
Was the President being truthful when he denied that he told Comey to back off the Flynn investigation?
We will see how it plays out. While I take no position on the outcome, I believe that what is most directly in play for the president from a legal jeopardy standpoint may not be that which is keeping the academics up at night.
Rather, what is in play may be whether President Trump’s conduct taken collectively will be seen by Special Counsel Mueller as rising to the level of a high crime or misdemeanor sufficient to support a referral to the House of Representative for an article of impeachment.
