Professor Sam Buell of Duke Law School, one of the real bright lights in American law – a former lead prosecutor in the Enron case and a truly brilliant scholar – has provided his take on the criminal obstruction of justice case against Mr. Trump in Slate. http://www.slate.com/articles/news_and_politics/jurisprudence/2017/07/the_obstruction_of_justice_case_against_trump_is_already_a_slam_dunk.html
As much as I respect Professor Buell’s judgment, I have to say I think that, quite uncharacteristically, he’s getting a bit ahead of the evidence and, perhaps, underappreciating the complications presented by a prosecution of a president.
Professor Buell argues, quite correctly, that “the president’s authority over federal law enforcement does not include the freedom to prevent investigation and prosecution of himself and his close aides.” But no serious person contends otherwise. The question at hand – the one Professor Buell undertakes to answer in Slate – is not whether any president is free to block any criminal investigation regardless of circumstance, but whether, on the known facts, this President has violated several very particular statutes – 18 USC 1503 or 18 USC 1512.
And the premise I don’t think Professor Buell takes seriously enough – at least in Slate – is that a president has the constitutional power to stop a criminal investigation, even into his own close aides, unless he does so “corruptly.” I don’t want to be unfair to Professor Buell’s argument, but at least in what he writes in Slate, he seems to assume that the mere closeness of the aide makes the act of stopping an investigation corrupt. I think, for a president, the issue is much trickier than that.
As I’ve argued at greater length previously, two things seem clear, at least to me: First, I think a president can certainly order the Justice Department not to pursue an investigation he, in good faith, deems baseless. Second, I think a president can, constitutionally and without violating federal criminal law, even choose not to prosecute a provable criminal case against a close subordinate executive branch official if the president makes the good faith judgment that the declination would be in the best interests of justice or in the national interest.
Neither proposition means, as folks like Alan Dershowitz have implied, that any such action by a president is both constitutional and legal. But they do mean that a prosecutor has to do more than show that there is some (undefined) degree of institutional or personal connection between the president and the investigative target. For example, it may well be that the Department of Justice now has solid evidence that General Flynn violated 18 USC 1001, which prohibits lying to federal agents. One can fairly argue that Trump could tell DOJ to drop that case, and do so without committing obstruction, if his motive in doing so was simply that he thought Flynn was a good public servant and that a criminal prosecution for lies would be overkill. If that’s all the gov’t could show, Trump would look bad. And maybe Congress would later decide that going too easy on your friends is impeachable. But, on those facts, would this constitute the crime of obstruction? I doubt it.
The result changes, at least for me, if Mr. Trump’s motive in trying to quash a Flynn investigation was to head off disclosures about himself or much more serious crimes involving hacking the election. Professors Eric Posner and Dan Hemel take a similar nuanced view. http://ericposner.com/when-does-the-president-commit-obstruction-of-justice-iii/.
Does all this mean that defining “corruptly” (always a ridiculously vague term) is much tougher in the case of a president? Yes. But I don’t think the difficulties presented by the president’s unique constitutional status can be dispensed with quite as easily as Professor Buell intimates in Slate.
In any case, regardless of who is right about what, to a non-lawyer, may seem a pretty fine point, neither an indictment (assuming that’s possible for a president) nor an article of impeachment against Mr. Trump based on obstruction of justice will have any traction outside the realm of theory unless more facts emerge about what Mr. Trump might have been trying to conceal by pressuring and then firing Mr. Comey.
Sam Buell said:
Frank, I think we are in agreement about where the one issue of substance lies, as I concede in my Slate piece. That’s a good sign. (They cut my piece by 1500 words by the way, and I didn’t use the term “slam dunk,” they did in the headline.) But perhaps neither of us is quite on the mark still. First, it just isn’t legally relevant to obstruction liability whether the underlying crime is there or whether the violator knows that. Second, your quite deft argument still suffers from the proves too much problem of the Dershowitz argument, with regard to what it suggests a president could legally do. Anything could be rationalized as in the national interest and rationalization isn’t a way of making mens rea go away. Otherwise a CEO could get away with accounting fraud on the argument that it’s better for the shareholders in the long run if the truth is suppressed. Third, I think we just disagree about whether there are enough clear facts to reach a conclusion about mens rea here. I don’t see the space for the argument you are allowing in this case, even if in another, especially given all the behavior towards Comey including clearing the room. But that’s a jury issue, which is almost always a place for reasonable minds to differ.
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