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,” Dowd told Axios co-founder, Mike Allen.
Is that defense even viable? The short answer, according to attorneys, is not really, no.
While Article II vests the executive power to the office of the president and makes him or her the chief law enforcement officer in the country, “that doesn't permit him to impede or interfere with a criminal investigation with 'corrupt intent'; that's the definition of obstruction of justice under the federal statute,” Paul Schiff Berman, a professor of Law at The George Washington University, told IJR.
Berman insisted that there's “little if any” constitutional basis for Dowd's comments, citing the articles of impeachment voted against both Richard Nixon and Bill Clinton. Both former commanders in chief faced charges of obstruction of justice as a violation of the president's constitutional obligation to “take care that laws are faithfully executed,” a requirement of Section 3 of Article II.
Berman has doubts that the aforementioned defense will abdicate responsibility from Trump. He argued, rather, that Article II holds the president to a higher level of scrutiny.
“Trump has essentially confessed three times to his corrupt intent in firing Comey: on May 10 in the Oval Office, on May 11 to NBC's Lester Holt, and then in his tweet on Saturday revealing his awareness that Flynn had committed a crime,” Berman argued. “Interfering with a criminal investigation with corrupt intent would surely violate that Article II obligation.”
Susan Low Bloch, attorney and professor at Georgetown Law, believes that the issue of executive obstruction boils down to two questions:
- Is it possible for the president be accused of obstruction of justice?
- What's the remedy?
For question one, the answer from Bloch and Berman is a resounding “yes.”
This is where the issue can get a bit contentious, Bloch told IJR.
If a president is found guilty of obstruction, Bloch asserts that the best course of action is to remove him or her from office through articles of impeachment. Then, that individual can be tried as a member of the public.
Others assert that the president can be tried and subsequently convicted while holding office, with the vice president assuming full responsibility under Section 1, Article II of the Constitution.
Berman made a point to note, too, that just because the president has the ability to do something doesn't mean that it would be in good faith to follow through on that whim.
“After all, just because the president is the commander in chief of the armed forces doesn't necessarily make it legal for him to, say, order a drone strike on his wife's lover. That would be murder regardless of the commander in chief's power.”
In the tweet that's caused much speculation, which was sent from Trump's Twitter account Dec. 2, the president seemingly admitted that he had knowledge of Flynn's lie to the FBI, a federal offense:
I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!
— Donald J. Trump (@realDonaldTrump) December 2, 2017
Dowd claimed that he drafted the controversial tweet on behalf of the president.
While many critics of the president are calling the message proof of possible obstruction of justice, Dowd claimed that presumption is unfounded.
“The tweet did not admit obstruction. That is an ignorant and arrogant assertion,” Dowd told Axios.
Berman fervently disagrees.
“I think Dowd's interpretation would be a big surprise to the drafters of the U.S. Constitution, who, after all, had just fought a war against a tyrannical king and were keen to limit the authority of the president.”