No, Trump Doesn't Stand Above the Law

El Dorado News-Times - - Opinion - An award-win­ning po­lit­i­cal jour­nal­ist, Micek is the Opin­ion Edi­tor and Po­lit­i­cal Colum­nist for Pen­nLive/The Pa­tri­otNews in Har­ris­burg, Pa. Read­ers may fol­low him on Twit­ter @ByJohnLMicek and email him at jmicek@pen­

Hey, did you know that Pres­i­dent Don­ald Trump can't be found guilty of ob­struc­tion of jus­tice? Yeah, me nei­ther. Thank good­ness that White House lawyer John Dowd came along to clear that up for us all, and, in the process, rip a hole in the time-space con­tin­uum, drop­ping us into some par­al­lel uni­verse where we're ac­tu­ally ruled by Mad King Don­ald, and not a demo­crat­i­cally elected ex­ec­u­tive who's sub­ject to the same set of laws as the rest of us.

In case you missed it, the ut­terly novel le­gal in­ter­pre­ta­tion that Dowd pro­vided to Ax­ios and NBC News came in re­sponse to Trump's tweet­ing last week­end that he knew that for­mer na­tional se­cu­rity ad­viser Michael Flynn had lied to the FBI about his con­tacts with Rus­sian Am­bas­sador Sergey Kislyak.

Le­gal ex­perts quite sen­si­bly sug­gested that if Trump knew Flynn lied to the FBI and then didn't tell the FBI about it, such an ad­mis­sion might in­crease his ex­po­sure to the kind of ob­struc­tion of jus­tice that's at the cen­ter of spe­cial coun­sel Robert Mueller's in­ves­ti­ga­tion.

But not Dowd.

Speak­ing to Ax­ios and NBC, Dowd the­o­rized that "the pres­i­dent can­not ob­struct jus­tice be­cause he is the chief law en­force­ment un­der [Ar­ti­cle II of the Con­sti­tu­tion) and has ev­ery right to ex­press his view of any case," The Post re­ported.

Ex­cept there are two prob­lems with that the­ory. One of them is for­mer Pres­i­dent Bill Clin­ton. The other is Pres­i­dent Richard Nixon.

Dur­ing im­peach­ment pro­ceed­ings in 1999, then U.S. Sen. Jeff Ses­sions of Alabama ar­gued that Clin­ton had to be re­moved from of­fice be­cause he ob­structed jus­tice in the course of the in­ves­ti­ga­tion into his af­fair with Mon­ica Lewin­sky.

"The facts are dis­turb­ing and com­pelling on the Pres­i­dent's in­tent to ob­struct jus­tice," Ses­sions said at the time, Politico re­ported, cit­ing re­marks in the con­gres­sional record.

Twenty-five years ear­lier, as his ad­min­is­tra­tion crum­bled dur­ing the Water­gate scan­dal, Nixon fa­mously claimed that "when the pres­i­dent does it, that means it is not il­le­gal."

Ex­cept, of course, that the ar­ti­cles of im­peach­ment lodged against Nixon in­cluded al­le­ga­tions of ob­struc­tion. Nixon, you'll re­call, re­signed be­fore he could be im­peached.

Norm Eisen, a for­mer Obama ad­min­is­tra­tion ethics of­fi­cial and the co-au­thor of a Brook­ings In­sti­tu­tion re­port look­ing at the his­tory of pres­i­den­tial ob­struc­tion of jus­tice, told the Wash­ing­ton Post this:

"There's a long line of cases hold­ing that when a gov­ern­ment of­fi­cial ex­er­cises an oth­er­wise le­gal author­ity with cor­rupt in­tent, they can be pros­e­cuted for ob­struc­tion. It flows from the no­tion that no per­son is above the law," he said.

That seems pretty cut and dried.

Dowd's the­ory, which was first ad­vanced by Har­vard law scholar Alan Der­showitz, isn't part of the White House's of­fi­cial le­gal strat­egy, ac­cord­ing to lawyer Ty Cobb, who is oversee­ing all things Rus­sia.

Der­showitz has ar­gued that Trump can't be charged with ob­struc­tion be­cause fir­ing Comey and telling the FBI who- and who not - to in­ves­ti­gate

is part of the job de­scrip­tion.

"Through­out United States his­tory - from Pres­i­dents Adams to Jef­fer­son to Lin­coln to Roo­sevelt to Kennedy to Obama - pres­i­dents

have di­rected (not merely re­quested) the Jus­tice Depart­ment to in­ves­ti­gate, pros­e­cute (or not pros­e­cute) spe­cific in­di­vid­u­als or cat­e­gories of in­di­vid­u­als," Der­showitz wrote in a June op-Ed for The Wash­ing­ton Ex­am­iner.

Der­showitz went on to note that "it is only re­cently that the tra­di­tion

of an in­de­pen­dent Jus­tice Depart­ment and FBI has emerged. But tra­di­tions, even salu­tary ones, can­not form the ba­sis of a crim­i­nal charge. It would be far bet­ter if our con­sti­tu­tion pro­vided for pros­e­cu­tors who were not part of the ex­ec­u­tive branch, which is un­der the di­rec­tion of the pres­i­dent."

Which is all well and good. But to para­phrase another for­mer Wash­ing­ton of­fi­cial, you make your case with the laws and pros­e­cu­tors you have, not the laws and pros­e­cu­tors you wish you had.

An in­de­pen­dent Jus­tice Depart­ment is far prefer­able to one di­rected by a po­lit­i­cally mo­ti­vated

ex­ec­u­tive who might be tempted to over­step his author­ity to tick names off his per­sonal en­e­mies list.

And that's true no mat­ter who does it Demo­crat or Repub­li­can.

Our sys­tem is re­liant on the be­lief that we're equally ac­count­able in the eyes of the law. And that no one - not even the

pres­i­dent of the United States - stands above it.

John L. Micek

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