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Prosecuting the PresidentHow Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law$

Andrew Coan

Print publication date: 2019

Print ISBN-13: 9780190943868

Published to Oxford Scholarship Online: January 2019

DOI: 10.1093/oso/9780190943868.001.0001

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Can the President Obstruct Justice?

Can the President Obstruct Justice?

Chapter:
(p.155) 8 Can the President Obstruct Justice?
Source:
Prosecuting the President
Author(s):

Andrew Coan

Publisher:
Oxford University Press
DOI:10.1093/oso/9780190943868.003.0009

Abstract and Keywords

A surprising number of presidential scandals have involved alleged attempts to cover up wrongdoing. In light of this history, it might appear strange to ask, “Can the president obstruct justice?” The answer would seem obviously to be yes. That is probably correct, but the issue is more complicated than it initially appears. This chapter recounts the arguments on both sides, describes the elements of obstruction of justice, and discusses historical examples. The great weight of argument suggests that the president can obstruct justice, but this question is not likely to be decided by courts or even on the basis of traditional legal arguments. The real question is whether Congress can be persuaded to impeach and convict a president for obstruction of justice. Experience indicates that the answer is yes, in the right circumstances. Whether those circumstances exist depends on the vigilance of the American people.

Keywords:   Watergate, Bill Clinton, Richard Nixon, Trump, Obstruction of Justice, Executive Power, Take Care Clause, Smoking Gun

At least since Watergate, political wags have smugly asserted: “it’s not the crime. It’s the cover-up.” Like most well-worn catchphrases, this one is silly and glib if taken literally. But it also contains an important kernel of truth. A surprising number of presidential scandals have involved alleged attempts to cover up wrongdoing, often by the president’s subordinates rather than the president. To take the most obvious example, the first article of impeachment against Richard Nixon was “obstruction of justice.” The second was “abuse of power.” Both were based on overlapping allegations that Nixon had impaired “the due and proper administration of justice and the conduct of lawful inquiries.”1

Other examples abound. The Iran-Contra scandal turned heavily on allegations that senior Reagan administration officials covered up the funneling of money and arms to Nicaraguan rebels. Ronald Reagan was never directly implicated in this cover-up. But there is reason to believe that his vice president, George H. W. Bush, might have been, had the investigation been allowed to proceed.2

Bill Clinton was impeached solely based on his attempt to cover up an extramarital affair with White House intern Monica Lewinsky. The articles of impeachment against him included (p.156) perjury before a federal grand jury, obstruction of justice, and abuse of power. Ultimately, Clinton was acquitted of all charges in the Senate. Still, only two other presidents in history have come so close to being removed from office. The sole basis for this monumental undertaking was an alleged cover-up.3

Finally, the possibility of an illegal cover-up was central to special counsel Robert Mueller’s investigation. Mueller seriously investigated whether Trump obstructed justice by asking FBI director James Comey to back off the investigation of national security advisor Michael Flynn. Mueller also investigated whether Trump fired Comey to interfere with the FBI’s Russia investigation. Finally, Mueller investigated whether Trump attempted to harass attorney general Jeff Sessions into resigning in order to obstruct Mueller’s investigation.4

In light of this history, it might appear strange to ask: “Can the president obstruct justice?” The answer would seem obviously to be yes. That is probably correct, but the issue is more complicated than it initially appears. The Constitution makes the president the nation’s chief law enforcement officer. For this reason, several prominent lawyers and legal scholars have argued that a president cannot unlawfully interfere with a federal investigation. After all, the Constitution empowers the president, and the president alone, to “take care that the laws shall be faithfully executed.”5

In plain English, the president is the boss of the whole federal law enforcement apparatus, including the FBI and the Justice Department. If he decides that the FBI director should be fired for pursuing an espionage investigation too aggressively, that is the president’s decision to make. Put differently, the president cannot obstruct justice because the president decides what justice consists of, so far as federal law enforcement is concerned. The idea is well captured by Richard Nixon’s famous—and notorious—plea in self-defense: “when the President does it, that means it is not illegal.”6

(p.157) Critics of this argument respond that the president’s powers as chief executive are subject to legal limits. Just as the president could not lawfully accept a bribe to drop criminal charges, he cannot interfere with a federal investigation to protect himself or his friends. To do so would be to act for a “corrupt purpose,” which is the hallmark of obstruction of justice. Nothing in the constitutional powers of the president permits him to misuse his office in this way. This argument is supported by recent historical practice, which strongly suggests that the president can commit the crime of obstruction of justice and that this crime can rise to the level of an impeachable offense.7 Still, no court has ever formally decided this question, and it remains the subject of discussion and debate.

The Anatomy of Obstruction

Lawyers define crimes by their essential elements: the precise facts that a prosecutor must prove to convict a person of the crime. There are several federal obstruction of justice statutes, which establish subtly different crimes, but all share the same three core elements. The first element goes by the hoary Latin name “actus reus,” or “guilty act.” This means an act that “influences, obstructs, or impedes”—or attempts to influence, obstruct, or impede—the due administration of justice. The second element is a “corrupt” or improper purpose. This is also called the “mens rea,” or “guilty mind,” requirement. The third element is an ongoing or future federal “proceeding” that the accused individual seeks to obstruct.8

Each element can be tricky in its own way. The guilty act element, for instance, requires an affirmative act, not a mere omission. The destruction of evidence or threatening of a grand jury witness surely qualifies. A passive failure to assist federal law enforcement is not sufficient. This explains why President Reagan was never formally accused of obstructing the investigation into (p.158) the Iran-Contra affair. Reagan seems to have known about his subordinates’ efforts to impede a congressional investigation. But a seven-year independent counsel investigation never turned up hard evidence that Reagan himself actively authorized, instigated, or orchestrated these efforts.9

In this way, the guilty act element narrows the range of conduct that qualifies as obstruction of justice. In other respects, however, that element sweeps quite broadly. An effort to influence, obstruct, or impede the due administration of justice need not succeed in order to qualify as a crime. Conduct that merely attempts or “endeavors to” obstruct justice is enough. If oil baron Edward Doheny bribed Albert Fall to lie before the grand jury, that would constitute a guilty act even if Fall told the whole truth. Nor is it necessary that there be an underlying crime to conceal. Bribing Fall to lie would still constitute a guilty act even if the oil lease he awarded Doheny violated no law. As legal scholars Daniel Hemel and Eric Posner put it, “obstruction of justice is an independent crime.”10

This sometimes leads critics to dismiss obstruction of justice as a manufactured offense of no real significance—the last refuge of desperate, partisan prosecutors. Stated so baldly, this argument cannot withstand scrutiny. The investigation of crimes is an indispensable function of government. The deliberate obstruction of that function, even by a defendant innocent of any underlying crime, threatens the integrity of the legal system. In effect, such conduct amounts to an assertion that the defendant is entitled to control his—or her—own investigation and prosecution. No legal system can afford to let such effrontery go systematically unpunished.11

The severity of obstruction of justice, however, falls along a spectrum. A civil defendant who lies about a peripheral matter in a deposition has probably violated one or more federal obstruction of justice statutes. But such conduct would rarely be prosecuted (p.159) in ordinary circumstances. The same goes for many technical instances of obstruction in criminal cases charging minor crimes or involving minor efforts to influence a federal proceeding. On the other hand, the flagrant and sustained abuse of official power to obstruct the investigation of serious crimes is a very grave offense. This is true even if the crimes under investigation cannot be proven or were never committed. Unfortunately, the obstruction of justice statutes do not themselves draw these distinctions. A judicious prosecutor must therefore exercise prudence and restraint in deciding whether to bring charges for obstruction of justice.12

So much for the guilty act element. What about corrupt or improper purpose? For most individuals charged with obstruction of justice, this is the easiest and most straightforward element of the crime. That is because most people have no plausibly legitimate business influencing, obstructing, or impeding the administration of justice. Any ordinary person who intentionally interferes with a federal investigation or judicial proceeding is probably motivated by an improper purpose. No precise definition of propriety is required to know that a defendant who intimidates a juror is behaving improperly. The same goes for the friend or lover or criminal associate of a defendant who engages in the same conduct. It does not matter if the defendant is innocent of the underlying crime or sincerely afraid of being framed by the police. Any intentional attempt to interfere with a judicial proceeding by an ordinary citizen is ipso facto—“by that very fact”—the product of an improper purpose.13

Other persons, however, have perfectly lawful reasons for seeking to influence—or even impede—the administration of justice. Edward Doheny’s lawyer gave a masterful, tear-jerking closing argument that resulted in the acquittal of his client for bribery. But no one would say he had obstructed justice. No one would say this even if Doheny’s attorney knew that his client was guilty, as (p.160) he probably did. In the context of America’s adversary system of justice, there is nothing improper about a defense attorney seeking the acquittal of a guilty client.14

Similarly, if the Teapot Dome special prosecutors determined that Doheny was too feeble to stand trial after the murder of his son, people might have questioned their judgment. But no one would have accused them of committing a federal crime. In a literal sense, their decision to drop the charges against Doheny would have impeded his prosecution. But under the circumstances, their purpose in making that decision would have been entirely proper. It is a prosecutor’s job to make exactly this sort of prudential judgment about which cases ultimately merit prosecution.15

This does not mean that a prosecutor can never obstruct justice. If the special prosecutors had scuttled the case against Doheny in exchange for a bribe, they would obviously have acted from an improper purpose and would be guilty of obstruction of justice. The very same action, in other words, can be perfectly legal when undertaken for a legitimate purpose and a federal crime when undertaken for an illegitimate one.16

The broad discretion of prosecutors to make charging decisions would be no defense. In 2016, the attorney general of Pennsylvania, Kathleen Kane, was convicted of obstruction of justice under state law. Prosecutors alleged that Kane had directed her subordinates not to investigate illegal leaks that she herself was responsible for. A jury convicted. There are many legitimate reasons why an attorney general, the state’s top prosecutor, might move to shut down an investigation. But concealing her own criminal conduct is not among them.17

The same basic principles apply to the president. As the nation’s chief executive, the president has both the authority and the responsibility to make decisions about federal law enforcement, including criminal prosecutions. Often, those decisions will have the (p.161) literal effect of impeding or obstructing the federal investigation and prosecution of crimes. In most cases, however, the president’s purpose for acting will be obviously proper for a person with his responsibilities. When President Barack Obama directed U.S. attorneys to place a low priority on marijuana prosecutions in states that have legalized the drug, critics questioned his judgment. But no one contended that he had obstructed justice, because his purpose for taking this action was manifestly proper. It is at the core of the president’s job to set priorities for the allocation of scarce federal law enforcement resources.18

There are even circumstances when a president might legitimately act to influence or impede the prosecution of a particular individual. For example, if a federal prosecutor seeks to subpoena a Canadian diplomat, the president might well intercede to protect the nation’s foreign relations. That is just what Ronald Reagan’s State Department did when this actually happened in 1982. So, too, a new president might properly direct federal prosecutors not to pursue charges against members of the outgoing administration. Such a directive might be intended to promote national unity or simply to avoid the appearance of criminalizing political differences. This is the course Barack Obama followed when he faced pressure to prosecute senior Bush administration officials for torture.

Absent strong evidence of ulterior motive, no one in either of these cases could plausibly accuse the president of obstructing justice.19 The main difference between a president and a prosecutor is that the president has a far broader array of responsibilities, including military and foreign affairs. The president can therefore act from a much broader range of proper purposes.

Even the president’s authority, however, is subject to limits. If the president ordered federal prosecutors to ignore evidence against his close friend he would clearly be acting with an improper (p.162) purpose. So, too, if the president ordered an investigation shut down in exchange for a bribe or to protect a politician of his own party. The president is not entrusted with law enforcement authority to protect his friends, to enrich himself, or to rig the political process. If he attempts to influence or impede federal law enforcement in pursuit of these ends he commits obstruction of justice.20

These are the clear cases. There are also closer ones. Sometimes it will be difficult to determine the president’s motive. Even when that motive can be discerned, it will often be complex, encompassing both legitimate and illegitimate considerations. Finally, the distinction between illegitimate pursuit of partisan advantage and legitimate consideration of public opinion may be fuzzy at the margin. A President does not obstruct justice simply by pursuing policies he believes will make him popular with the public or members of his party. But it will not always be easy to draw the line between permissible conduct of this kind and impermissible abuse of the presidency for partisan advantage.21

The existence of difficult cases should not obscure the fundamental point. Some purposes are clearly improper even for a president. They are not necessary for the president to carry out his constitutional responsibilities. To the contrary, they violate his constitutional duty to “take care that the laws shall be faithfully executed.” A president who attempts to interfere with federal law enforcement for one of these purposes commits obstruction of justice.22

Actually, that is not quite right—or at least it is not quite complete. To obstruct justice in violation of federal law, the actions of the president or anyone else must be directed at a “proceeding.” This is the third and final element of the crime of obstruction of justice. The basic idea is that obstruction cannot occur in the abstract. An individual must obstruct, or seek to obstruct, (p.163) something—namely, a concrete government effort to enforce the laws of the United States. Such an effort is called a “proceeding,” and different statutes define this term differently. The most restrictive definition is limited to court proceedings, including grand jury proceedings. The broadest encompasses “any proceeding before Congress or a Federal Government agency which is authorized by law.” Courts have split on whether this definition includes criminal investigations conducted by the FBI, but it probably does, at least if the investigation is one that “foreseeably leads to a grand jury probe.”23

Putting it all together, the crime of obstruction of justice consists of obstructing or attempting to obstruct a federal proceeding for an improper purpose. Many complexities lurk in this apparently simple definition, but none affects the bottom line. The president of the United States is fully capable of committing the statutory offense of obstruction of justice. The only question is whether the Constitution grants the president such absolute law enforcement power as to place him effectively above the law. Both history and logic strongly suggest that the answer is no.

The Smoking Gun

On June 23, 1972, just six days after the Watergate burglary, Richard Nixon’s chief of staff broached a delicate subject with his boss. Not yet fifty years old and sporting a tight, high crewcut, Bob Haldeman was an intense and self-serious former advertising executive. He first rose to national prominence for his role in orchestrating Nixon’s remarkable political renaissance during the 1968 presidential campaign. After losing the 1960 presidential election to John F. Kennedy, Nixon was widely viewed as an embittered has-been, uncharismatic and unsuited to national politics in the age of television. Haldeman, however, astutely (p.164) recognized the former vice president’s potential to tap into the simmering racial and cultural grievances of the late 1960s. He also recognized that Nixon made a far better impression—sunnier, less aggrieved, and more forthright—when he was well-rested. By slashing Nixon’s campaign travel and leveraging his own advertising background, Haldeman built an effective and ultimately successful campaign strategy around this insight. No other single person was more instrumental in propelling Richard Nixon to the presidency. Ironically, few would contribute more to his downfall.24

“Now, on the investigation,” Haldeman said. “You know, the Democratic break-in thing? We are back in the problem area because the FBI is not under control.” This was not his first conversation with the president on the subject, and Haldeman jumped right to the grubby details. The investigation, he explained, was “now leading into some productive areas because they’ve been able to trace the money through the bank, and it goes in some directions we don’t want it to go.”25

The money in question was that paid to the Watergate burglars, which the FBI was on the verge of tracing to Nixon’s campaign committee. It did not take a genius to see that this had the makings of a political calamity. As usual, however, Haldeman had a plan. In this case, the plan was actually John Mitchell’s idea. After a careful analysis, White House counsel John Dean had also signed off. The plan was simple. The president would order the deputy CIA director to call FBI director Patrick Gray “and just say, ‘Stay the hell out of this. This is business we don’t want you to go any further on.’ ” Both Mitchell and Dean agreed with Haldeman that this was the administration’s only play.26

Nixon was momentarily confused. “What about Pat Gray? You mean he doesn’t want to?” He seemed to think that the FBI was refusing to cooperate.

(p.165) Haldeman patiently explained that the FBI director would need an excuse to call off the investigation. A request from the CIA would give it to him. Coincidentally, several of the Watergate burglars had been recruited from the Cuban exile community in Miami. The Miami Cubans had connections with the CIA dating back to the Bay of Pigs invasion ordered by Nixon’s old nemesis, John F. Kennedy. For this reason, Haldeman explained, “we’re set up beautifully to do it.” Because Cubans were involved, the FBI already suspected that the burglary was a CIA job. The president had only to arrange for the CIA to confirm this erroneous suspicion, and “that would take care of it.” The FBI would shut down its investigation before tracing any aspect of the burglary to the Nixon campaign.27

The president was still not tracking. Was the plan for his campaign operatives to implicate the CIA? Would they just lie and say that the Cubans had approached them to make the whole thing look like a national security matter? Haldeman acknowledged that this was one possible strategy but quickly pointed out the obvious risk: “then we’re relying on more and more people all the time. That’s the problem.”28

“All right. Fine,” Nixon said.

“The thing to do is to get them”—the FBI—“to stop.”

“Right, fine,” the president agreed, finally grasping the point. “How do you do call him in? Well, we protected Helms”—the CIA director—“from one hell of a lot of things.” Nixon seemed to think that shutting down an FBI investigation was the least that Richard Helms could do for him in return.29

Haldeman agreed.

Nixon wrapped up the conversation by giving Haldeman a script for his call with the CIA. “When you get these people, say: ‘Look, this will open the whole Bay of Pigs thing.” Nixon trailed off. “Don’t lie to them. Just say this is sort of a comedy of (p.166) errors, bizarre, without getting into it. They should call the FBI in and say that we wish for the country, ‘Don’t go any further into this case, period!’ ”30

This was a complete fabrication. Nixon was not actually worried about national security or foreign relations. The Cuban émigrés among the Watergate burglars were not actually involved in any active CIA operation. It was all a sham concocted to protect the president’s closest aides from criminal investigation and Nixon himself from untold political damage. It was also utterly ineffective. By the time Haldeman called deputy CIA director Vernon Walters, the FBI was no longer running the investigation. Earl Silbert’s team at the U.S. attorney’s office had taken over. The horse was out of the barn.31

This episode poses an almost perfect test of the argument that a president cannot obstruct justice. As head of the executive branch, the president unquestionably possesses constitutional authority to supervise the FBI and the CIA. If the Constitution permits him to exercise this authority for any reason, there could be nothing improper about Nixon’s actions. Yet when the White House released a transcript of this conversation on August 5, 1974, it almost immediately became known as “the smoking gun.” No one quibbled that the president had failed in his effort to shut down the Watergate probe. Nor did anyone contend that the Constitution empowered the president to take this action based on phony national security concerns. Rather, all eleven Republicans who had voted against impeachment on July 30—true Nixon diehards all—announced that they would change their votes. The evidence that the president had committed obstruction of justice was now irrefutably clear, and it cost Nixon his last remaining congressional support. He resigned the presidency three days after releasing the transcript.32

(p.167) “We Were Never Really Alone, Right?”

The day after his deposition in the Paula Jones case, President Bill Clinton called his long-time personal secretary, Betty Currie. As Currie remembered it, Clinton asked her to come to the White House “just to talk about a few things.” A diminutive and elegant woman of fifty-eight, Currie was no ordinary secretary. By any fair measure, she was an accomplished and savvy Washington hand. After attending high school in Waukegan, Illinois, she began her secretarial career working for the U.S. Navy. From there, she worked her way up through several federal agencies before becoming secretary to Peace Corps Director Joseph Blatchford in 1969.

Diligent, efficient, shrewd, and highly competent, Currie impressed everyone she worked for. This included her superiors on the 1984, 1988, and 1992 Democratic presidential campaigns. After assisting political strategist James Carville in the Clinton campaign’s Little Rock “War Room,” she followed Clinton to the White House. She remained in this position for his entire eight-year term.33

Currie arrived at the White House at approximately 5 p.m. on Sunday, January 18, 1998. Her elderly mother had been released from the hospital that day, and this was the earliest she could make it. The president began by explaining that he had been formally deposed the previous day in the Paula Jones sexual harassment lawsuit. Currie already knew this, but the next thing Clinton told her came as a shock. Paula Jones’s lawyers had asked about White House intern Monica Lewinsky. As Clinton’s personal secretary, Currie was the gatekeeper to the Oval Office. She knew who Lewinsky was and when she had been to see the president. She also knew that Lewinsky had “a very serious crush on the President.”34

A religious, churchgoing woman known for her modesty, Currie prided herself on believing the best about people. She was (p.168) not naïve or gullible, far from it. But if anything untoward were going on between the president and this young woman, she had not wanted to know. There had certainly been signs, but Currie had deliberately refused to acknowledge them to herself. Now, however, Clinton began to ask her a series of very suspicious leading questions, with the pretense of trying to refresh his own recollections.35

When Currie recalled the episode later before Ken Starr’s grand jury, she hesitated over the exact wording. But she clearly recalled the gist of Clinton’s questions: “you were always there when Monica was there, right? We were never really alone, right? Monica came on to me, and I never touched her, right? She wanted to have sex with me, and I can’t do that, right? You could see and hear everything, right?” Currie had not been able to see and hear everything and had no way of knowing what happened outside her direct observation. Nevertheless, she answered in the affirmative.36

Two days later, Clinton called Currie after midnight. She was sound asleep, and it took her a minute to understand what he was talking about. He wanted to know if she had seen the news on the internet. The Drudge Report, then in its infancy, was running a shocking story: former White House employee Linda Tripp had recorded Monica Lewinsky luridly describing her sexual encounters with the president. Had Currie seen it? She had not. Could she reach Monica? She would try.

The conversation went on for nearly an hour. But when Currie testified about it later, she could not recall what else had been said. At one point, she thought, “Gee, would he please get off the phone because I want to go to bed?” The following day Currie told Clinton that she had not been able to reach Monica. “The only thing I got was this message from her that she couldn’t talk to me.” The president again walked Currie through the same set of leading questions he had asked her on Sunday. It was January 21, the day (p.169) the Monica Lewinsky story first broke in the mainstream national media.37

These conversations would become the crux of Ken Starr’s case that Bill Clinton had committed obstruction of justice. There were various other supporting allegations: Clinton had directly or indirectly supplied Lewinsky with a set of talking points to shut up Linda Tripp. Clinton had asked Vernon Jordan to procure Lewinsky a job in exchange for her silence. Clinton had asked Currie to retrieve and conceal a box of gifts he had given to Lewinsky during their relationship. All of these charges, however, rested on disputed or otherwise problematic evidence. Lewinsky herself repeatedly denied that anyone had ever asked her to lie or promised a job in exchange for her silence. Bill Clinton’s apparent efforts to coach Betty Currie were the best and clearest evidence of obstruction that Starr’s team turned up.38

Both Clinton and Currie would later claim that these conversations were sincere attempts by the president to refresh his recollection. This is almost impossible to believe. Yet, at the times Clinton spoke with Currie, she had not yet been named as a witness in any proceeding. This gave Clinton a colorable argument that he was simply worried about public exposure. Alternatively, and somewhat more plausibly, Clinton may have been trying to figure out which misleading but technically true statements he could get away with. As in any obstruction of justice case, motive was crucial; the evidence of Clinton’s was less than ironclad. None of this deterred the House of Representatives, which voted to impeach Bill Clinton for obstruction of justice on December 19, 1998.

This episode sheds important additional light on the debate over whether a president can obstruct justice. At the most basic level, a majority of the House obviously concluded that a president was capable of obstructing justice. This majority included many still prominent Republicans. Many Democrats almost certainly (p.170) agreed that a president could obstruct justice but voted against impeachment for other reasons.

As a historical precedent, however, this vote is less significant than it initially appears. Bill Clinton was accused of perjury and witness tampering in a civil case. This conduct could not plausibly be characterized as an exercise of his constitutional powers to supervise the executive branch. The president has no constitutional authority to determine whether a civil case goes forward. Even if he had such authority, it would not much help his position. Clinton was not accused of trying to shut down the civil case against him—or the subsequent criminal investigation initiated by the independent counsel. He was accused of corrupting those proceedings by encouraging Betty Currie and others to perjure themselves.

As a purely theoretical exercise, it is possible to construct a partial and strained constitutional defense on Clinton’s behalf. The president’s greater constitutional power to shut down a federal criminal investigation could conceivably include the lesser power of throwing sand in its gears. But even the most zealous defenders of presidential power do not generally push the point this far. Rather, they distinguish between conduct within the scope of the president’s constitutional powers and conduct outside that scope. When the president exercises his authority to supervise and control federal law enforcement, his actions cannot be criminalized by Congress. But when the president acts outside this authority, Congress is free to regulate—and even criminalize—that behavior. Clinton’s apparent efforts to influence Currie’s testimony pretty clearly fall in the latter category.

This view is narrower and more defensible than a categorical insistence that the president can never obstruct justice. But it would still have perverse and deeply disturbing consequences. For starters, it would permit Congress to criminalize relatively petty forms of obstruction, like Bill Clinton’s, while immunizing (p.171) far more serious abuses of power, like Richard Nixon’s. If the Constitution empowers the president to shut down any federal investigation for any reason, Congress is hamstrung. It can do nothing to stop a president from exercising this awesome power in exchange for campaign contributions, political endorsements, or cash bribes. Applying the same theory to the president’s other constitutional powers would produce some truly anomalous results. The president could use his authority as commander-in-chief to sell U.S. military aid to the highest bidder, including foreign powers. Perhaps this is the law, but that seems hard to believe.

“Flynn’s a Good Guy”

On Valentine’s Day of 2016, FBI Director James Comey sat in a semicircle of six chairs facing the presidential desk known as Resolute. Built from the oak planks of an Arctic exploration vessel, this desk had been used by twenty-two presidents prior its current occupant, Donald Trump. To conceal his leg braces, Franklin Roosevelt had commissioned an oak frontispiece bearing the presidential seal to cover the kneehole. This modification gave the desk the appearance of a massive, solid block of wood separating the president from his audience.

Besides Comey, that audience included Attorney General Jeff Sessions, Vice-President Mike Pence, and several top intelligence officials. This group was gathered at the White House to brief President Trump on terrorist threats to the United States.39 The briefing did not take long. To Comey, the president appeared “oddly uninterested and distracted,” almost bored. There was little energy or sense of urgency in the room. Though Comey had some disquieting classified information to relay, Trump was impassive. He asked no questions.

(p.172) When the meeting was over, the president loudly thanked the group, as if relieved to be finished with a dull and unpleasant chore. Then, he pointed at Comey. “I just want to talk to Jim,” he said, pointedly. His tone clearly indicated that he wished everyone else to leave. Comey grew nervous. Less than a month into the new president’s term, this was the fourth time Trump had sought to meet with him alone. These meetings worried Comey deeply. In place of the FBI’s much-cherished independence, he suspected that Trump was seeking to establish “some sort of patronage relationship.”40

As others filed out of the Oval Office, Jeff Sessions and the president’s son-in-law Jared Kushner lingered hesitantly. Both appeared to grasp the impropriety of Trump’s request but seemed powerless to do anything about it. The president curtly excused each of them in turn. When the room was clear, Trump turned a blunt gaze on Comey. At six feet eight, the FBI director towered over almost everyone he met, including the six-foot-three Trump. But even to a man of James Comey’s formidable stature and long experience, the presidency possesses an awesome majesty. Sitting opposite the president behind his imposing and historic desk, Comey felt as if he were sitting at the foot of a throne.41

“I want to talk about Mike Flynn,” Trump said flatly.

General Michael Flynn, Trump’s first national security advisor and fiery campaign surrogate, had been fired the previous day. His dismissal followed press reports that Flynn had lied about his telephone calls with the Russian ambassador Sergey Kislyak during the presidential transition. Those calls had been picked up by federal wiretaps of Kislyak’s phone. As a result, FBI investigators knew that Flynn had asked Kislyak to block a UN resolution condemning Israeli settlements. Flynn had also promised Kislyak that President Trump would repeal the mild sanctions Barack Obama imposed as retaliation for Russian election meddling.42

(p.173) When the press first reported these calls, Vice President Pence publicly insisted that Flynn and Kislyak had merely exchanged pleasantries. He specifically denied that they had discussed U.S. sanctions, explaining that Flynn told him so directly. Later that month, at Comey’s direction, FBI investigators had interviewed Flynn at the White House. As a former director of the Defense Intelligence Agency, Flynn should have known that his calls with Kislyak were recorded. All calls of Russian officials in the United States are. Nevertheless, Flynn lied to the investigators, denying that he and Kislyak had discussed either sanctions or the UN resolution.

On January 26, the Justice Department advised the president that Flynn might be susceptible to Russian blackmail over his lies to federal agents. The Russians, after all, knew the truth about the calls. Yet, for more than two weeks, Trump took no action. Only on February 13, when the New York Times and Washington Post reported that Trump had been warned about Flynn’s lies weeks earlier, did the president demand Flynn’s resignation.43

Trump now explained that decision to Comey. There was nothing wrong with Flynn’s calls to Kislyak, he said. In this, he was mostly correct, at least as a legal matter. A 220-year-old federal law called “the Logan Act” prohibits any U.S. citizen from conducting unauthorized negotiations with a foreign power. But no person has ever been convicted of violating it. Regardless, Trump said, Flynn had lied to the vice-president. That meant he had to go.44

Agitated by the newspaper reports that had forced his hand on Flynn, Trump launched an extended tirade against leaks to the media. On this subject, he and Comey saw eye to eye, and the FBI director momentarily thought he might have dodged a bullet. Perhaps he could just run out the clock? He explained to Trump how difficult it was to prosecute leakers because doing so generally required the cooperation of recalcitrant media witnesses. This (p.174) prompted Trump to reminisce fondly about “how we once put reporters in jail and that made them talk.”45

At this point, the door to the Oval Office opened several inches. White House chief of staff Reince Priebus poked his balding head into view. Trump motioned to Priebus to close the door, which he quickly did. The interruption seemed to remind the president of his original purpose. Mike Flynn, he said to Comey, “is a good guy and has been through a lot.” After repeating his earlier explanation for firing Flynn, he added, “I hope you can see your way clear to letting Flynn go. He is a good guy. I hope you can let this go.”46

Comey was aghast. As he understood Trump’s thinly veiled request, the president was asking him to drop the criminal investigation into Flynn’s lies. His motive for doing so appeared to be personal regard or sympathy. Comey did not challenge Trump, responding only that Flynn was “a good guy.” But he was sufficiently concerned that he immediately prepared a memorandum documenting the conversation. Comey had never felt the need to take this precaution with President Bush or President Obama. This was the second time he had done so with Trump.

The next day, the FBI director pleaded with a shifty-eyed Jeff Sessions never to let it happen again. “You are my boss,” he said urgently. “You have to be between me and the president.” Sessions simply stared down at his desk. Later, Comey testified before the Senate that he considered Trump’s request “an order.” He also concluded that Trump must have known he was doing something wrong. Why else would he have “ejected everyone, including my boss and the vice president, from the room so he could speak with me alone?”47

Firing the FBI Director

Comey did not shut down the investigation of Michael Flynn. Three months later, he was delivering a routine pep talk at the (p.175) FBI’s Los Angeles field office. As he spoke, the breaking news chyrons on the wall-mounted televisions behind his audience announced: “Comey Resigns.” Confused, he thought it must be an elaborate prank. But quickly some variant of “FBI Director Fired” appeared on three different news networks.

After a flurry of perplexing phone calls, Comey’s assistant emailed him a scanned copy of his formal dismissal letter. It said that Attorney General Sessions and Deputy Attorney General Rod Rosenstein had recommended his firing. The ostensible justification was that Comey had violated Justice Department policy by publicly commenting on Hillary Clinton’s private email server during the 2016 campaign. This, the letters said, had been unfair to the Democratic presidential candidate. Trump’s letter thanked Comey for “informing me on three separate occasions that I am not under investigation” and wished him good luck in his future endeavors.48

Public reaction to Comey’s dismissal was swift and skeptical. During the 2016 presidential campaign, Trump had repeatedly criticized the FBI for handling Hillary Clinton with kid gloves. Now he was firing the FBI director for being too hard on her? Many Democrats were still irate at Comey’s actions during the election, but this did not pass the laugh test. Quickly, Trump added fuel to the fire. In a now famous NBC News interview, he explained that he had decided to fire Comey before receiving the attorney general’s recommendation. “Regardless of recommendation, I was going to fire Comey,” Trump said. “When I decided to just do it, I said to myself—you know, this Russia thing with Trump and Russia is a made-up story.”49

A week later, the New York Times reported that Trump told a similar story to Russian ambassador Sergey Kislyak the day after Comey’s dismissal. “I just fired the head of the F.B.I. He was crazy, a real nut job,” Trump said at the official Oval Office (p.176) meeting. “I faced great pressure because of Russia. That’s taken off.” The story was accompanied by a Russian Foreign Ministry photo of the dapper, blue-suited Kislyak laughing appreciatively at the president’s joke.50 American journalists were barred from the meeting, but the Russian delegation was allowed to bring a photographer.

Trump’s meeting with Kislyak took place on May 10. On May 16, the New York Times reported that the president had asked James Comey to drop the investigation of Michael Flynn. The following day, Deputy Attorney General Rod Rosenstein announced the appointment of Robert Mueller as special counsel. In this capacity, Mueller would be responsible for investigating Russian interference with the 2016 presidential election and any other matters directly arising from that investigation. Mueller’s appointment letter also specifically authorized him to investigate any criminal interference with his own investigation, including obstruction of justice.51

Trump was furious. Why wasn’t Jeff Sessions protecting him the way Bobby Kennedy had protected JFK and Eric Holder had protected Barack Obama? Wasn’t that what an attorney general was for? “Where is my Roy Cohn?” he demanded. The reference was to Joe McCarthy’s legendarily vicious lieutenant, who also served as Trump’s personal attorney and mentor in the president’s younger days. If Trump had known that Sessions would recuse himself from the Russia inquiry, he never would have appointed him. “I wish I hadn’t!” he tweeted.

During the next year, Trump’s frustrations repeatedly boiled over in vitriolic Twitter fusillades. With startling ferocity and bile, he attacked both Sessions and Rosenstein for their role in perpetuating “the single greatest WITCH HUNT in American political history.” Privately, Trump repeatedly but unsuccessfully badgered Sessions to reverse his recusal. At least once, he ordered the attorney general fired. He also tried to dismiss Robert Mueller at (p.177) least twice but was talked down by the subordinates he directed to carry out the order.52

The Centrality of Motive

This episode, too, sheds important light on a president’s ability to commit obstruction of justice. In broad outline, Donald Trump’s pattern of behavior looks much like Richard Nixon’s. But a great deal depends on the president’s motives. Trump obviously sought to influence and impede the Russia investigations of both the FBI and Robert Mueller. The important and difficult question is why he took these actions.53

Trump’s public statements strongly suggest that his official justification for firing James Comey was pretextual. They also strongly suggest that Comey’s dismissal and Trump’s later efforts to undermine Mueller were motivated by hostility to the Russia investigation. Beyond that, the available evidence is open to several plausible and potentially overlapping interpretations. One is that Trump was simply engaged in political damage control. A second is that he was motivated by personal vanity—specifically, his long-standing outrage at the scandal hanging over his 2016 election victory. A third is that Trump wanted to shut down the Russia investigation before it exposed his guilt or that of his family and friends. A fourth is that he expected the Justice Department to protect him and attack his enemies and was attempting to remake it in this mold. A fifth is that he sincerely believed the Russia investigation was a partisan vendetta with no legitimate factual or legal basis.

If any combination of the first four interpretations is correct, then Trump pretty clearly acted for an improper, purely selfish purpose. In that case, he very likely committed the crime of obstruction of justice. If the fifth interpretation is correct, then the question becomes substantially murkier. A president faced with a (p.178) true “deep state” conspiracy to bring down his administration for nefarious reasons would certainly be justified in acting against it. Even a president who reasonably, but falsely, believed that he faced such a conspiracy would not commit a crime by attempting to suppress it. What about a president who maliciously deludes himself into this belief? This poses a much harder question, one that no court has ever come close to answering.54

Finally, there is the lingering question of whether a president is capable of obstructing justice when exercising his constitutional powers to supervise federal law enforcement. A substantial majority of legal scholars who have examined this question believe the answer is yes. History and logic support this view. Many lawyers and legal scholars have further concluded that Donald Trump in fact committed obstruction of justice. The arguments offered by these lawyers and scholars are important, as are those offered on the other side. But in the end, these questions are not likely to be decided in the courts or even on the basis of traditional legal arguments. That is because no special prosecutor is likely to indict a sitting president. The real question, in this case and in general, is whether Congress can be persuaded to impeach and convict a president on the ground of obstruction of justice.55

Experience suggests that the answer is yes, in the right circumstances. Whether those circumstances exist depends, like so much else, on the vigilance of the American people. Traditional legal arguments may help to stimulate popular awareness and to dispense with casuistic defenses of presidential misconduct. But the ultimate questions are deeper and more serious. Has the president sought to place himself above the law and do the American people care enough to do something about it? Only when the answer to both questions is yes is our constitutional system capable of holding a president accountable for obstruction of justice.

Notes:

(1.) Fred Emery, Watergate: The Corruption of American Politics and the Fall of Richard Nixon (1994); John A. Farrell, Richard Nixon: The Life (2017; House Judiciary Committee, Articles of Impeachment against President of the United States Richard M. Nixon, July 27, 1974.

(2.) Lawrence Walsh, Firewall: The Iran-Contra Conspiracy and Cover-up (1997); Lawrence Walsh, Final Report of the Independent Counsel for Iran/Contra Matters, August 4, 1993; “The Iran-Contra Affair 20 Years On: Documents Spotlight Roll of Reagan, Key Aides,” National Security Archive Electronic Briefing Book No. 201, November 24, 2006.

(3.) Ken Gormley, The Death of American Virtue: Clinton vs. Starr (2010); House Judiciary Committee, Articles of Impeachment against President William Jefferson Clinton, December 12, 1998.

(4.) Michael S. Schmidt & Julie Hirschfeld David, “Trump Asked Sessions to Retain Control of Russia Inquiry after His Recusal,” New York Times, May 29, 2018; Devlin Barrett et al., “Mueller Investigation Examining Trump’s Apparent Efforts to Oust Sessions in July,” Washington Post, February 28, 2018.

(5.) David B. Rivkin, Jr., & Lee A. Casey, “Can the President Obstruct Justice?,” Wall Street Journal, December 10, 2017; Josh Blackman, “Obstruction of Justice and the Presidency: Part I,” Lawfare, December 5, 2017; Saikrishna Prakash & John Yoo, “Can the President Obstruct Justice?,” National Review, December 15, 2017; U.S. Constitution, Article II; Michael S. Schmidt et al., “Trump’s (p.225) Lawyers, in Confidential Memo, Argue to Head Off a Historic Subpoena,” New York Times, June 2, 2018.

(6.) Rivkin & Casey 2017; Blackman 2017; Prakash & Yoo 2017; Frost/Nixon Interviews, May 17, 1977.

(7.) Daniel Hemel & Eric Posner, “Presidential Obstruction of Justice,” 106 California Law Review (forthcoming 2018); Barry H. Berke et al., “Presidential Obstruction of Justice: The Case of Donald Trump,” Brookings Institute White Paper, October 10, 2017; Daniel Hemel, “Of Course the President Can Obstruct Justice,” Slate, December 4, 2017.

(8.) Hemel & Posner 2018; 18 U.S.C. § 1503(a).

(9.) Hemel & Posner 2018; Walsh 1997; Walsh 1993.

(10.) Hemel & Posner 2018; United States v. Aguilar, 515 U.S. 593 (1995).

(11.) Stuart P. Green, “Uncovering the Cover-up Crimes,” 42 American Criminal Law Review 9 (2005).

(12.) Daniel C. Richman & William J. Stuntz, “Al Capone’s Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 Columbia Law Review 583 (2005); Harry Litman, “Pretextual Prosecution,” 92 Georgetown Law Journal 1135 (2004).

(13.) Hemel & Posner 2018.

(14.) Id.; McCartney 2014.

(15.) Hemel & Posner 2018; McCartney 2014.

(16.) Hemel & Posner 2018; Richard Primus, “Motive Matters in Assessing the Travel Ban Case,” Take Care, March 20, 2017.

(17.) Hemel & Posner 2018; Jess Bidgood, “Pennsylvania’s Attorney General Is Convicted on All Counts,” New York Times, August 15, 2017.

(18.) Hemel & Posner 2018; “Guidance Regarding Marijuana Enforcement,” Justice Department Memorandum for All U.S. Attorneys, August 29, 2013.

(19.) Philip Shenon, “U.S. Tells Court Subpoena Errs In Deaver Case,” New York Times, June 20, 1987; Eric Posner, “Why Obama Won’t Prosecute Torturers,” Slate, December 9, 2014; Hemel & Posner 2018.

(20.) Id.; Berke et al. 2017.

(21.) Hemel & Posner 2018.

(22.) Id.

(23.) Id.; 18 U.S.C. § 1503(a); United States v. Simmons, 591 F.2d 206 (3d Cir. 1979); 18 U.S.C. § 1512(c).

(24.) Farrell 2017; Richard Severo, “H. R. Haldeman, Nixon Aide Who Had Central Role in Watergate, Is Dead at 67,” New York Times, November 13, 1993; Robyn Price Pierre, “How a Conservative Wins the Presidency in a Liberal Decade,” Atlantic, July 9, 2016.

(25.) Transcript of a Recording of a Meeting between the President and H. R. Haldeman in the Oval Office on June 23, 1972, from 10:04 to 11:39 a.m.

(26.) Id.

(27.) Id.

(28.) Id.

(29.) Id.

(30.) Id.

(31.) Id.; Emery 1994; Woodward & Bernstein 1976; Richard Reeves, President Nixon: Alone in the White House (2001).

(32.) Emery 1994; Woodward & Bernstein 1976.

(33.) Nancy Gibbs, “The Currie Riddle,” CNN, April 27, 1998; David Plotz, Slate, “Betty Currie, the Plight of the Presidential Secretary,” February 8, 1998; “Betty Currie Oral History, Personal Secretary to the President,” Presidential Oral Histories, Miller Center, University of Virginia, Charlottesville, Virginia.

(34.) “Excerpts from Betty Currie Testimony,” Washington Post, October 2, 1998; Gormley 2011; Jeffrey Toobin, A Vast Conspiracy: The Real Story of the Sex Scandal That Nearly Brought Down a President (1999).

(35.) “Excerpts from Betty Currie Testimony” 1998.

(36.) Id.; Gormley 2011; Toobin 1999.

(37.) “Excerpts from Betty Currie Testimony 1998; Betty Currie Oral History 2006; Toobin 1999.

(38.) Gormley 2011; Toobin 1999.

(39.) James Comey, A Higher Loyalty (2018); “Resolute Desk,” White House Museum, http://whitehousemuseum.org.

(40.) Comey 2018.

(41.) Id.; James Comey Memorandum, February 14, 2017.

(42.) Comey 2018; Colleen Shalby, “Timeline: What We Know about the Events Leading to Michael Flynn’s Resignation,” Los Angeles Times, February 14, 2017.

(43.) Id.; Comey 2018

(44.) Id.; 18 U.S.C. § 953; Daniel Hemel & Eric Posner, “Why the Trump Team Should Fear the Logan Act,” New York Times, December 4, 2017.

(45.) Comey 2018.

(46.) Id.

(47.) Id.; Testimony of Former FBI Director James Comey, Senate Intelligence Committee, June 8, 2017.

(48.) Comey 2018; Gregory Krieg, “Tick-Tock: How Comey’s Firing Played Out in Real Time,” CNN, May 9, 2017; letter from President Donald J. Trump to James Comey, May 9, 2017.

(49.) Scott Detrow, “ ‘Nothing Less Than Nixonian’: Democrats React To Comey Firing,” NPR, May 9, 2017; Evan Osnos, “How Comey’s Firing Accelerates the Russia Investigation,” New Yorker, May 10, 2017.

(50.) Matt Apuzzo et al., “Trump Told Russians That Firing ‘Nut Job’ Comey Eased Pressure from Investigation,” New York Times, May 19, 2017.

(51.) Michael S. Schmidt, “Comey Memo Says Trump Asked Him to End Flynn Investigation,” New York Times, May 16, 2017; Devlin Barrett et al., “Deputy Attorney General Appoints Special Counsel to Oversee Probe of Russian Interference in Election,” Washington Post, May 18, 2017; U.S. (p.227) Justice Department, Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters, Order No. 3915-2017, May 17, 2017.

(52.) Michael S. Schmidt, “Obstruction Inquiry Shows Trump’s Struggle to Keep Grip on Russia Investigation,” New York Times, January 4, 2018; Michael S. Schmidt and Julie Hirschfeld Davis, “Trump Asked Sessions to Retain Control of Russia Inquiry after His Recusal,” New York Times, May 29, 2018; Jonathan Swan, “Trump Repeatedly Pressured Sessions on Mueller Investigation,” Axios, May 31, 2018; Jonathan Mahler & Matt Flegenheimer, “What Donald Trump Learned from Joseph McCarthy’s Right-hand Man,” New York Times, June 20, 2016.

(53.) Hemel & Posner 2018; Kevin Johnson, “Special Counsel Robert Mueller Using Multiple Grand Juries in Russia Inquiry,” USA Today, August 4, 2017.

(54.) Jonathan Turley, “Donald Trump’s Clever Plan to Foil an Obstruction of Justice Charge,” USA Today, May 31, 2018.

(55.) Lauren Peale, “Yes, a President Can Obstruct Justice, Legal Experts Say,” ABC News, December 5, 2017; Aaron Blake, “Trump’s Lawyer Says a President Can’t Technically Obstruct Justice. Experts Say That’s Fanciful,” Washington Post, December 4, 2017; Scott Bomboy, “Can a President Obstruct Justice? The Legal Experts Have a Few Thoughts,” Constitution Daily, December 4, 2017; Hemel & Posner 2018.