Donald Trump’s personal attorney’s claim that the President cannot be guilty of obstructing justice raises two stunning possibilities that could cast the Russia investigation and its threat to his White House in a new and even more serious light.
First, Trump lawyer John Dowd’s comments in an interview with Axios raise the question of whether Trump’s legal team has already accepted that special counsel Robert Mueller has grounds to conclude Trump did in fact obstruct justice by firing FBI Director James Comey.
If that is the case, Dowd’s interview, after a weekend of spinning by Trump and aides following the announcement of a plea deal for former national security adviser Michael Flynn, leads to another profound question.
Has the White House already embarked on a public relations strategy designed to lessen the chances that the Republican-led House would draw up articles of impeachment against the President based on any recommendation by Mueller?
Dowd’s claims did not come in isolation. They followed the President’s attacks on the FBI and his raising of doubts that justice would be served by the Mueller investigation at the weekend. “It’s reputation is in Tatters – worst in History!” Trump tweeted.
On Monday, the President told reporters at the White House that he feels “very badly for Flynn” and then made an unsubstantiated claim against a target he often uses to distract from his own legal and political vulnerabilities.
“Hillary Clinton lied many times to the FBI, nothing happened to her. Flynn lied and they destroyed his life,” Trump said. “It’s very unfair.”
Orchestrated offensive?
Taken together, the Dowd and Trump comments had the feel of an orchestrated offensive to repair the damage wrought over the weekend, to discredit Mueller’s findings ahead of time and to offer ammunition for pro-Trump media.
Trump’s broadside against the FBI has prompted some talk about why the bureau’s new director, Christopher Wray, who was nominated by the President to replace Comey, has not stepped up to publicly defend his agents.
Wray told his staff in an agency-wide email Monday that the bureau should be prepared for scrutiny.
“Because of the importance of our mission, we are also entrusted with great power, and we should expect — and welcome — people asking tough questions about how we use that power,” Wray wrote in the internal message, obtained by CNN.
Wray did not mention Trump in the message.
Several former senior law enforcement officials however said that Wray was probably doing the right thing by staying out of the political firing line.
“It doesn’t do any good to take this President on in a public forum,” said Rory Little, a former associate deputy attorney general, on CNN.
“You don’t want to give the President the opportunity to fire you while you are trying to do your job,” he said.
Underlying Monday’s flurry of controversy is a third issue — whether Dowd’s position has any legal grounding in itself, and whether it would stand up to challenge as a defense of the President’s action if Mueller finds against him in an investigation that was originally set up to probe whether there was collusion between the Trump campaign and Russia during last year’s election.
Dowd’s interview reverberated through Washington a day after veteran Democratic Sen. Dianne Feinstein said on NBC’s “Meet the Press” that she saw the outlines of an obstruction of justice case forming against Trump.
It follows a series of tweets fired out by the President’s Twitter account at the weekend that immediately turned the notion of obstruction of justice from a point of conversation around the Mueller probe, into an apparently active possibility.
Dowd told Axios: “(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.”
The motivation for Dowd’s introducing his point at this moment — long before Mueller has concluded his probe — is just as interesting as the legal point he makes itself.
“It tells you that the President’s legal team is concerned that the President obstructed justice,” Renato Mariotti, a former federal prosecutor, told CNN’s Kate Bolduan on Monday.
“There is absolutely no reason for the President’s legal team to go out there and claim that the President cannot obstruct justice unless they are concerned that he may have liability for that,” he said.
What did Trump know?
The new debate about obstruction exploded after Trump’s account tweeted during the weekend that he had to fire Flynn because Flynn lied to Vice President Mike Pence and the FBI about his conversations with Russian officials.
If Trump knew that Flynn had lied to the bureau when he asked Comey by the former FBI director’s own account in February to go easy on his fired national security adviser, he could be seen as advocating a cover-up of a crime.
Dowd eventually insisted that he, not Trump, had written the tweet.
As the stunning implications of Dowd’s comments were playing out in Washington, there was also intense interest in the substance.
Dowd was effectively arguing that Trump as the chief law enforcement officer can direct the Justice Department on the use of federal resources.
But CNN legal analyst Paul Callan disputed that argument.
“I don’t happen to agree with that theory and I think most legal scholars would not agree that the President could obstruct an investigation of his own office,” said Callan. “Because then it’s personal, it’s not just him doing the job to help the country, it is him obstructing justice directly.”
After this article was published, Callan further clarified his position to make the point that in certain circumstances, a president can be prosecuted for obstruction of justice.
“The president can be guilty of an obstruction of justice where he terminates or impedes an investigation to protect his own personal interests and those of his staff from a charge of criminality rather than seeking to advance a legitimate public policy objective,” Callan said.
Legal argument
The idea that a President cannot obstruct justice may be a workable legal argument to contend with any future criminal action against Trump. Legal scholars have yet to resolve a constitutional dispute over whether a sitting president can be indicted. But it may not protect the President politically.
After all, Richard Nixon once claimed after his resignation that “when the President does it, that means that it is not illegal.”
But the articles of impeachment drawn up by the House of Representatives that helped force his resignation included one accusing Nixon of obstructing justice.
Similarly, the articles of impeachment against Bill Clinton included an accusation that he had “prevented, obstructed, and impeded the administration of justice.”
In his interview with Axios, Dowd disputed widespread claims that the tweet from Trump’s account on firing Flynn admitted obstruction.
“That is an ignorant and arrogant assertion,” he said.
UPDATE: This story was updated with additional comment from Callan.
