//  12/12/17  //  In-Depth Analysis

Cross-posted from Shugerblog

A president can be criminally liable for obstruction of justice, even for an official constitutional power like firing or pardons. Over the past week, Trump’s lawyer John Dowd, Alan Dershowitz, and others have argued that a president is chief law enforcement officer, and thus cannot be prosecuted for obstruction of justice for exercising a duty recognized by the Constitution. Yesterday, a Wall Street Journal op-ed took another shot at this argument.  This debate has become even more important over the weekend, as these arguments potentially immunize Trump for firing Mueller.

I addressed some of those arguments here, and others recently have, too. I addressed the general case of obstruction of justice case against Trump here. In this post, I respond to a new narrower argument by focusing on a thought experiment with presidential bribery, pardons, and military action. I also address Supreme Court precedents that keep a door open for criminal prosecution based on official acts for improper obstructionist purposes. Please also keep in mind, as I and others have explained, “high crimes and misdemeanors” are not limited to statutory felonies, but applied to significant abuses of power that might not be felonies. But criminal liability informs and shapes the law and politics of impeachment, and it also affects the liability of those who aided and abetted Comey’s firing. Also note that the Nixon Articles of Impeachment basically included obstruction charges, for which Republicans voted, and during the Clinton impeachment, various Republicans charged Clinton with obstruction of justice, including then-Sen. Sessions, Sen. McConnell, and Sen. Grassley.

Alan Dershowitz initially made the broadest argument, that the president cannot be guilty of obstructing justice. He has since backtracked, acknowledging that the president “is not above the law,”and that a president could commit obstruction of justice in some circumstances. Now he makes a narrower claim: “My argument, unlike that of President Trump’s lawyer, is not that a president can never be charged with obstruction of justice. It is that he cannot be charged with that crime if his only actions were constitutionally authorized. This distinction is central to our system of separation of powers and checks and balances.” In a follow-up piece in the Boston Globe, Dershowitz argues, “[U]nder our constitutional system of separation of powers, the president cannot be charged with a crime for merely exercising his authority under Article 2 of the Constitution. This authority includes firing the director of the FBI, for whatever reason or no reason.”

Basically, Dershowitz is arguing that because the constitution gives the president the power to fire (or nominate, or pardon, or veto),  a president’s action in firing an executive official is immune from obstruction of justice charges. Today’s Wall Street Journal op-ed by David Rivlin and Lee Casey makes the same point, but with less analysis. (A few months ago, Rivlin and Casey used the Wall Street Journal to call on President Trump to pardon everyone involved, not the proudest moment in Wall Street Journal’s storied history.)

Josh Blackman and Andy Grewal fill in with more analysis and more nuance. Blackman then concedes:

But this does not mean that the president has unfettered authority over the administration of justice. Starting from first principles, the Constitution enumerates “bribery” and “treason” as explicit grounds for impeachment. If the president accepted a bribe in exchange for signing an executive agreement that gave aid and comfort to foreign belligerents—even though these are actions in his official capacity—the president could be removed from office by Congress. This otherwise lawful act amounts to both bribery and treason. However, the lawful exercise of an Article II power — whether signing an executive agreement or vetoing a bill — does not give rise to an impeachable offense.

This last sentence technically begs the question: what is “lawful” exercise? Of course, if an action is “lawful,” it is not a crime. But that’s the key question: Can criminal statutes restrict the president’s use of his constitutionally granted powers? Can a president use those powers for improper, corrupt and criminal purposes with impunity?

Andy Grewal has offered several thoughtful posts on this topic.  But in line with the arguments by Blackman and Dershowitz, Grewal offered this exchange that shows their argument’s flaws:

This exchange is key to understanding how an official presidential act can in itself be the crime. Basically, Omri Marian was right. Here I explain why.

Let’s start with a bribery scenario: imagine if a president fired an FBI director (or the Attorney General, or a U.S. Attorney). Then let’s say investigators later discover a coded message from a billionaire to the president promising to pay him a million dollars to fire that official. And let’s say they find that the billionaire then attempted (but did not yet succeed) to send the million dollars through backchannels. The only evidence that the president agreed to the bribe was the act of firing the official. The firing itself was the actus reus (an act or conduct that is an element of a crime, as opposed to the mens rea, the mental state). Imagine that there is no other valid reason for firing the official (who, for the sake of argument, was excellent and shared the president’s policy priorities). Could the president be prosecuted on the basis of the firing itself as the actus reus (the bad act) and as circumstantial evidence of the mens rea, as evidence of illegal motive?  I am not necessarily arguing that this evidence would convince a unanimous jury beyond a reasonable doubt, but it surely would be enough for probable cause to bring a bribery charge.

Even though legislators and judges have immunity for official acts, they, too, can be charged with bribery. I am suggesting that a legislator’s official vote or a judge’s official decision, with no other evidence but in context where that official act indicates agreement to a bribe, could be the sole factual basis for the actus reus and evidence of the mens rea. It would not be as strong as a case with more communication, but it would be a valid case meeting the threshold of probable cause.

The same bribery scenario could apply to other official acts, like a pardon, a veto, a nomination, or the exercise of the commander-in-chief’s miltary power. The official act can be the evidence of the bribe. If the billionaire was being prosecuted for a crime, and sent a coded message that he’d pay a million dollars for a pardon, and then the president pardoned him, that official act itself could be the basis of a bribery prosecution. If not, then a president (or a legislator or a judge) would have an easy bribery loophole: just receive coded messages offering money for votes, and as long as the officer did not say anything, he could vote (or fire or nominate) and take campaign contributions with immunity from bribery prosecution. That cannot be right.

Now let’s try a different kind of crime. The president, as commander-in-chief, has the power to order the use of force. Now let’s say he ordered a military strike on a site, initially claiming that the site was a terrorist base. But it turns out that it was no terrorist base, but the home of a witness against him, who was in FBI witness protection program. Or it was a political rival. Or his spouse’s lover. The backstory does not matter. The point is that if a president ordered such a strike with intent to murder, the official act itself would be the bad act, the actus reus, of the crime. Other context would be necessary for the mens rea, but the order itself would be the basis for the murder prosecution.

Can a president or military official be charged with a war crime? What if a president ordered genocidal strikes? I am concerned that the consequence of the arguments from Dershowitz, Blackman, and Grewal are that presidents would be immune from war crimes, as long as the military orders were “official acts.” And of course such orders would be official acts with a textual constitutional basis.

That brings us back to Trump firing Comey. Of course, the president had the power to fire Comey, but he doesn’t have power to do it for any reason. His reason cannot be illegal. Trump couldn’t fire Comey in return for a bribe, even when the firing is the only concrete act as evidence of an agreement to the bribe. So, too, the president cannot fire an FBI director to obstruct justice, even if the only overt act was the firing itself.

Dershowitz writes: “So, until and unless there is proof that Trump has committed an independent criminal act — beyond acts that are within his constitutional prerogative — it would be unconstitutional to charge him with obstruction of justice.” This is not right. My examples have demonstrated that one does not need proof the president committed some independent act. The president can be prosecuted for bribery for one act — the firing, or a pardon, etc., as the actus reus — if that act in context points to an improper purpose, as required by the obstruction statutes.

Dershowitz continues, “Now President Trump’s political opponents are seeking to have the special counsel psychoanalyze the president to determine whether his motives were pure, mixed or corrupt.”  True, when it comes to obstruction of justice, the biggest challenge is proving “corrupt” intent, as required by the relevant statute here, 18 U.S.C. 1512(c)(2).  Ordinarily, the intent element would have been an enormous obstacle. However, Trump has essentially confessed his intent, first on May 10th in the Oval Office talking to Lavrov, Kislyak, and an audience of witnesses recording his admission that he fired Comey because of the Russia investigation, and again on May 11th on national TV with Lester Holt. His tweet a week ago only confirmed that he believed Flynn had lied to the FBI when he was intervening with Comey to shift his investigation.

Some have turned to the Supreme Court for a claim of presidential immunity. In Nixon v. Fitzgerald, the Supreme Court heard a civil lawsuit against Nixon, as ex-president, for firing an official allegedly as retaliation for whistleblowing. The Supreme Court, in a 5-4 vote, recognized that the president had absolute civil immunity for official acts, even if those acts allegedly violated the law. Andy Grewal summarizes:

The majority responded to these allegations without any discussion of the President’s potential criminal liability. However, it emphasized that immunity for official acts would “not leave the Nation without sufficient protection against misconduct” by the President. Id. at 757. The Constitutional remedy (impeachment) remained, and various formal and informal checks applied to the President that did not apply to other executive officials, such as “constant scrutiny by the press,” “[v]igilant oversight by Congress,” a desire to earn re-election, and so on. Id. at 757.

Nixon v. Fitzgerald does not directly resolve whether the Constitution permits Congress to criminalize a President’s official act, because the case dealt with only a private suit for damages. But it should give pause to those who believe that the federal obstruction of justice statutes can constitutionally reach President Trump’s official acts related to the Russia investigation (i.e., the firing of James Comey). ‘

I agree with Grewal that Nixon v. Fitzgerald should give pause. Grewal is also right to concede that the Supreme Court decision never directly addressed immunity from criminal liability, but it isn’t entirely correct that the majority never touched on criminal liability (more on that below). The Supreme Court’s analysis was functional, not formal, turning on the practical purposes of immunity. The Court’s main concern was how civil litigation would be a “diversion of [the President’s] energies,” (p. 752) and secondarily, the Court discussed a need for the President to act “fearlessly” in executing official duties (id).

On the first point, “diversion” or distraction, one might have thought that if a President or other official is protected from civil litigation, all the more so he sould be protected from criminal prosecution, because the penalties are more severe. On the other hand, if the core problem is diversion, civil litigation by private plaintiffs is more likely to be decentralized harassment without political accountability and with less legitimacy. A prosecutor is more constrained in many ways. Civil liability is also far broader than criminal liability, with fewer protections, so a president’s opponents could exploit civil litigation more effectively than criminal prosecution. Moreover, this potential “distraction” problem can be reduced or eliminated by waiting to prosecute until after the President leaves office.

On this question, it turns out that the Court cites an important passage from Justice Joseph Story:

“There are . . . incidental powers belonging to the executive department which are necessarily implied from the nature of the functions which are confided to it. Among these must necessarily be included the power to perform them. . . . The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office, and, for this purpose, his person must be deemed, in civil cases at least, to possess an official inviolability.”  3 J. Story, Commentaries on the Constitution of the United States § 1563, pp. 418-419 (1st ed. 1833).

The topic is the President’s discharge of official duties, and Story concludes that the president must have “official inviolability” (or absolute immunity) from civil suits for those official duties. However, Story limits the President’s immunity for criminal liability: “The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office.” First, it’s notable that Story himself — and the Supreme Court — suggested a lesser scope of immunity for criminal than civil litigation. Civil immunity is made permanent, but criminal protections are only time-bound by the office, and thus appear not be truly “immunity” in the traditional sense. Story is acknowledging a president could be arrested after leaving office, but can he be arrested and imprisoned for official acts?  This passage generally is about a President’s liability for official acts, so Story may be implying that the president can be prosecuted for official acts. Arguably, in the way the Supreme Court is using Story’s commentary, criminal immunity implicitly ends when the President is out of office. Story is offering a strong hint about another relevant question, whether a sitting president may not be indicted for official acts. Story mentions arrest and detention, not indictments, but I tentatively would go further to suggest that indictments must wait until the President is out of office.  In this section of his Commentaries, Story included other broad language about the president’s duties, so one could argue that Story intended broad immunity. Nevertheless, I’m struck by how the Supreme Court selected and edited down this passage more narrowly. In the only section of this decision relating to criminal liability, the Supreme Court seems to have selected a passage from Story opening the door to the notion that a president might be arrested and tried for official acts. The Supreme Court left open that possibility, and wrote that it was crucial for there to be powerful mechanisms to prevent a president from arrogating power to be “above the law.”

As for the second problem identified by the Supreme Court, on enabling a President to execute his duties “fearlessly,” the functional analysis of Nixon v. Fitzgerald is important. The Supreme Court explicitly seeks to balance the purposes of liability and immunity, speaking in terms of “public policy and convenience” (p. 746) and “varying scope” of immunity based on the “balancing” of interests (p. 747). The Supreme Court was willing to offer civil immunity, because civil liability is broader and more susceptible to exploitation. But criminal immunity arguably goes too far, to immunize the most lawless and dangerous behavior. Criminal liability offers more protections in terms of defendants’ rights, jury unanimity, and the requirement of guilt beyond a reasonable doubt. In a balancing test analysis, I would argue that absolute civil immunity is a stronger reason not to provide broad criminal liability, because then the President becomes too free to govern “fearlessly,” even recklessly and lawlessly. With absolute criminal immunity for official duties on top of civil immunity, the functional balance tips way too far, putting a president above the law.

The Supreme Court rejected the idea that civil immunity would put the president “above the law.” The decision listed impeachment, but it did not rule out prosecution. (p. 758, n.41).

Is a President above the law? It turns out that another Supreme Court case entertained Nixon’s argument and rejected it. In U.S. v. Nixon, the Supreme Court required President Nixon to obey a crucial Watergate subpoena.  In Jones v. Clinton, the Supreme Court did not extended civil immunity to unofficial acts, and famously permitted civil lawsuits against President Clinton while he was in office. In the context of all three decisions taken together, the Supreme Court seems to strike a more careful balance to open the door criminal proceedings for presidential official acts after a president is out office.

On the one hand, the stakes of this debate may be lower than they seem. Congress can impeach and remove for “high crimes” that are abuses of power, even if they fall short of felonies. And there are good reasons to conclude a sitting president may not be indicted, because impeachment is the constitutionally prescribed remedy. On the other hand, the consequences of this legal question are actually enormous. Articles of impeachment are far more legitimate and persuasive if they allege statutory felonies, not just less concrete “abuses of power.” And because impeachment is ultimately a political act, the politics of persuasion and consensus matter deeply.

The most puzzling part of these exchanges for me is how all of these commentators balance their views with a tradition of checks and balances and with republican government. It’s hard not to see how their interpretation places a President above the law, in that they enable the president to manipulate and obstruct law enforcement for improper purposes as long as the president sticks to firing and pardoning. In this context, they are saying that there is no criminal liability for Trump firing Comey, then firing Rosenstein and Mueller together, and then firing whomever else Trump needs to fire to protect himself. Then somehow the fate of the republic is in the hands of 34 votes in the Senate? To wait four years for a presidential election that may or may not be a fair election that may or may not be hacked? These writers each seem to be all too comfortable with a president artfully using constitutionally granted powers to obstruct justice, immunize himself, and consolidate a regime. And if one branch — one person — can monopolize law enforcement with impunity, it is hard to see how their interpretation takes checks and balances, constitutionalism, and limited government seriously.

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