President Donald Trump’s admission that he was fuming over ongoing investigations into his campaign’s alleged ties to Russia when he fired FBI Director James Comey has touched off a legal debate about whether that move could be the basis for obstruction of justice charges against the president.
A prominent legal scholar often cited by Trump and his team, Harvard Law professor Alan Dershowitz, argued this week that dismissing Comey could not be illegal because the president has the clear right under the Constitution to dismiss top executive branch appointees.
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"Whatever one may think of the president’s decision to fire Comey as a matter of policy, there is no legitimate basis for concluding that the president engaged in a crime by exercising his statutory and constitutional authority to fire director Comey," Dershowtz wrote in an op-ed published in the Washington Examiner.
"It should not be a crime for a public official, whether the president or anyone else, to exercise his or her statutory and constitutional authority to hire or fire another public official … It is dangerous and wrong to criminalize lawful behavior because it may have been motivated by evil thoughts," Dershowitz argued.
Several other lawyers challenged that view, noting that acts like hiring someone may be perfectly legal under most circumstances but illegal if done to thwart an investigation or advance some other unlawful goal.
"If he didn’t obstruct justice, [Trump] is walking right up to the line in an incredibly reckless way. He admitted that he was concerned about the Russia investigation. … Just because it is legal to fire Comey does not end the analysis," said Peter Zeidenberg, a former federal prosecutor now with law firm Arent Fox. "It is legal to throw one’s own computer in the river. But if the reason you are throwing that computer in the river is because of damaging information that you have reason to know the government is seeking as part of a criminal investigation and you are trying to hide, you have an obstruction of justice case."
A former federal prosecutor in Chicago, Jeff Cramer, said his office routinely brought charges involving how politicians carried out their official duties.
"We see it here in Illinois all the time where public officials hire or fire individuals in exchange for an envelope full of money or something more subtle like jobs or favors," said Cramer, now with Berkeley Research Group, an investigative firm. "Public officials shouldn’t get a carte blanche to take any action regardless of their intent. … If the president did this specifically to impede the investigation, you could look at obstruction as a proper charge."
Georgetown Law professor Susan Bloch agreed.
"If he was firing him to shut him up that could be obstruction of justice, or if he did it to impede the investigation," she said. "There are illegitimate reasons."
Some lawyers compared the situation to the two aides to Gov. Chris Christie (R-N.J.) who were convicted of shutting down bridge traffic to punish a local mayor for opposing Christie politically. Closing tollbooths for a legitimate traffic study would have been completely legal, but doing it as an act of political retribution led a jury to convict those two aides of crimes — a verdict they’re appealing.
The argument that Trump was legally in the clear when he fired Comey did get support this week from a surprising source: the just-ousted FBI director himself.
"I have long believed that a President can fire an FBI Director for any reason, or for no reason at all," Comey said in a letter to FBI colleagues after his abrupt dismissal. "I’m not going to spend time on the decision or the way it was executed. I hope you won’t either. It is done, and I will be fine, although I will miss you and the mission deeply."
Of course, Comey wrote that before Trump acknowledged he had the Russia probe on his mind when he decided to fire the FBI chief and before Trump suggested Friday on Twitter that he might have recordings of meetings where Trump claims Comey assured him he was not under investigation.
Those developments led Democratic lawmakers to raise the specter of obstruction charges against the president.
"That is dangerously close to obstruction of justice," Sen. Dick Durbin (D-Ill.) said Friday. "This morning, the President tweeted a thinly veiled threat to Mr. Comey, which could be construed as threatening a witness in this investigation, which is another violation of federal law.
White House press secretary Sean Spicer repeatedly declined to say Friday whether any tapes exist of Comey and Trump, but the spokesman dismissed the idea that the president was trying to intimidate the FBI chief.
"That’s not a threat," Spicer said of Trump’s tweet about tapes.
Lawyers said that the White House could have dampened the controversy by saying Trump didn’t know of any tapes. Instead, Spicer fanned the flames by letting the notion linger.
"His non-answer on the taping does keep alive the possibility that the president’s tweet was a threat to Comey," Cramer said.
Whether a criminal charge against the president is theoretically possible, such a case would face a series of other evidentiary and legal hurdles. The president’s statements might well be too vague to bring charges over and the publicly available proof that he fired Comey to shut down or set back the investigation is still rather muddled, ex-prosecutors said.
"The reality is this seems like an act of petulance, not necessarily obstruction," Cramer said.
An effort to prosecute Trump would also run headlong into another potentially serious obstacle: serious doubt about whether criminal charges can be brought against a sitting president.
The issue arose under President Richard Nixon, with his lawyers arguing in the Supreme Court that subpoenas for his tapes were invalid in part because the Constitution bars criminal charges against the president.
Special Prosecutor Leon Jaworski argued there was no such prohibition.
The justices upheld the subpoena, 8-0, but never settled the question about criminal charges.
Similar questions were raised when President Bill Clinton ran into serious legal trouble as the Whitewater probe homed in on false statements he allegedly made about his relationship with White House intern Monica Lewinsky.
In fact, a Senate Judiciary subcommittee convened a hearing to examine the question. Scholars were divided, although the prevailing view appeared to be that the Constitution precludes criminal charges against a president for as long as he holds that office.
"If the president is alleged to have done something criminal, you don’t indict him, you impeach him and remove him from office," Bloch said. " I don’t believe you should be able to indict a sitting president."
Some lawyers argue that the impeachment language in the Constitution explicitly prohibits prosecuting a sitting president. Bloch said she doesn’t agree with that reading, but thinks the principles of the Constitution compel that reading.
"I believe that’s the right answer, but I don’t believe the text tells you that. … I do infer it," she said.
Zeidenberg said, however, that criminal prosecution isn’t the right tack in this instance.
"I think impeachment, not indictment, is the remedy."