New legal defence for Trump: Sorry, but he’s the President
One of President Donald Trump’s lawyers made a brazen assertion yesterday — that a president cannot be found guilty of obstruction of justice — signalling a controversial defence strategy in the wide-ranging Russia probe, as Trump’s political advisers are increasingly concerned about the legal advice he is receiving.
Trump tweeted over the weekend that he knew thennational security adviser Michael Flynn lied to the FBI about his contacts with the Russian ambassador before firing him in February — and before then-FBI director James Comey said Trump asked him to be lenient while investigating Flynn. Experts said the President’s admission increased his legal exposure to obstruction-of-justice charges, one of the core crimes under investigation by Special Counsel Robert Mueller.
But Trump’s personal lawyer John Dowd sought to excuse the President’s tweet in part by telling Axios and NBC News yesterday 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”. Dowd declined to elaborate.
Inside the White House, some senior officials were baffled that Dowd publicly offered this interpretation, which has been advanced by constitutional scholar Alan Dershowitz in defence of Donald Trump has made headlines for his tweets on Michael Flynn.
We have a president, not a king. No one is above the law, whether it be Trump or any of his close associates. Sam Berger
Trump but flatly dismissed by many other legal scholars.
Ty Cobb, a White House lawyer overseeing its handling of the Russia investigation, said yesterday that the Dershowitz-Dowd theory was not the president’s official legal strategy.
“It’s interesting as a technical legal issue, but the President’s lawyers intend to present a fact-based defence, not a mere legal defence,” Cobb said. “That should resolve things, but we all shall see.”
Many Washington lawyers and legal scholars disputed Dowd’s interpretation, citing several court cases and articles of impeachment — as well as, in the words of one expert, “common sense”. “We have a president, not a king,” said Sam Berger, senior policy adviser at the Centre for American Progress, a liberal think tank. “No one is above the law, whether it be Trump or any of his close associates. It’s the sort of desperate claim that makes you wonder, ‘What exactly are they hiding’?”
Berger argued that Dowd’s reasoning amounts to a “Hail Mary pass” for the president to escape responsibility.
Some legal scholars, however, support Dowd’s claim. Dershowitz, a Harvard Law School professor, said yesterday on Fox News Channel that Trump was within his rights when he fired Comey.
“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 said. “That’s what Thomas Jefferson did, that’s what Lincoln did, that’s what Roosevelt did. We have precedents that clearly establish that.”
Cobb and Dowd have urged Trump to co-operate fully with Mueller’s investigation and have been privately assuring the President that the Mueller probe was likely to reach its conclusion by the end of this year, complete with a public exoneration of Trump of any wrongdoing.
But some Trump advisers and outside allies — including former White House chief strategist Steve Bannon — have been grumbling for weeks that the President’s legal strategy is too compliant with Mueller and not combative enough.