Yes, the President Can Obstruct Justice

By THE EDITORIAL BOARD  of the New York Times

You know you have a problem when you’ve been president for less than 11 months and you’re already relying on Richard Nixon’s definition of what’s legal.

On Monday morning, Axios reported that Mr. Trump’s top personal lawyer, John Dowd, said in an interview that the “president cannot obstruct justice because he is the chief law enforcement officer” under the Constitution and “has every right to express his view of any case.”

This will come as news to Congress, which has passed laws criminalizing the obstruction of justice and decided twice in the last four decades that when a president violates those laws he has committed an impeachable offense.

In 1974, the first article of impeachment drafted by the House of Representatives charged President Nixon with “interfering or endeavoring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special Prosecution Force.”

A quarter-century later, President Bill Clinton was impeached by the House for, among other things, having “prevented, obstructed and impeded the administration of justice” and for having “engaged personally, and through his subordinates and agents, in a course of conduct or scheme designed to delay, impede, cover up and conceal the existence of evidence and testimony.”

Now let’s see if those descriptions apply to President Trump.

On Saturday morning, in the wake of the bombshell guilty plea by Michael Flynn, the president’s former national security adviser, for lying to F.B.I. agents about his communications with Russian officials late last year, Mr. Trump tweeted, “I had to fire General Flynn because he lied to the Vice President and the FBI.”

Recall that the original justification for Mr. Flynn’s firing was simply that he had misled Vice President Mike Pence; otherwise he had done nothing wrong. That’s the case Mr. Trump made the day after Mr. Flynn’s firing, when he allegedly tried to shut down the F.B.I.’s inquiry into his campaign’s connections with Russian officials by telling James Comey, who was then the F.B.I. director, in a private Oval Office meeting, “I hope you can see your way clear to letting this go, to letting Flynn go.”

In May, Mr. Trump fired Mr. Comey, telling Russian officials in the Oval Office the next day that firing Mr. Comey had relieved “great pressure” on him, and referring to Mr. Comey as a “nut job.” In an interview with NBC, Mr. Trump said, “When I decided to just do it, I said to myself, I said, ‘You know, this Russia thing with Trump and Russia is a made-up story.’”

It was bad enough for the president to attempt to interfere in any way with a law enforcement investigation of one of his top aides. But with Saturday’s tweet, Mr. Trump admitted that he knew Mr. Flynn had committed a federal crime at the time he fired Mr. Comey for refusing to stop investigating him. To most people with a functioning prefrontal cortex, it sure sounds like Mr. Trump is admitting to “interfering or endeavoring to interfere with the conduct of investigations” and to “impeding the administration of justice.”

Mr. Dowd confused the country further by saying he had drafted Mr. Trump’s tweet himself — a bizarre claim for a lawyer to make about a statement that incriminates his client. Then he outdid himself with his assertion to Axios that it is not possible for the president to obstruct justice. The argument, as far as it goes, is that the president is the nation’s highest ranking law enforcement officer and has the constitutional authority to supervise and control the executive branch, which includes making decisions about investigations and personnel.

But Mr. Trump didn’t just try to shut down some random no-name case; he tried to shut down an investigation into his own campaign’s ties to the Russian government’s efforts to swing the 2016 election in his favor. As that investigation keeps revealing, Mr. Trump’s top associates have repeatedly been untruthful about their contacts and communications with Russian officials.

In Saturday’s tweet, Mr. Trump also wrote, “It is a shame because his actions during the transition were lawful. There was nothing to hide!” If there were truly nothing to hide, if these talks with Russians were all just part of a normal presidential transition process, then why all the lying?

Any child could tell you the answer: People lie when they know they’ve done something wrong. Mr. Flynn and others in Mr. Trump’s campaign and transition team were secretly trying to undermine United States foreign policy as private citizens — which is not just wrong, but a criminal violation of the Logan Act. Worse, the policy being undermined was President Barack Obama’s punishment of a foreign adversary for interfering in an American election, and the underminers — Mr. Trump’s team — were the very people who benefited most directly from that interference.

For some historical perspective, Richard Nixon once again proves useful. In the closing days of the 1968 presidential campaign, Mr. Nixon ordered H. R. Haldeman, later his chief of staff, to throw a “monkey wrench” into the Vietnamese peace talks, knowing that a serious move to end the war would hurt his electoral prospects. Mr. Nixon denied that he did this to the grave; Mr. Haldeman’s notes, discovered after his death, revealed the truth.

Meanwhile, as the evidence of both subterfuge and obstruction continues to grow, Mr. Trump’s tireless spinners and sophists are working to convince the American public that it’s all no big deal. This is an embarrassing and unpersuasive argument, but it’s not surprising. At this point, they have nothing else to work with.

—————————

A version of this editorial appears in print on December 5, 2017, on Page A26 of the New York edition

 

Annex:

Supreme Court allows full enforcement of Trump travel ban while legal challenges continue

By Robert Barnes – The Washington Post

The Supreme Court on Monday granted President Trump’s request to fully enforce his revised order banning travel to the United States by residents of six mostly Muslim countries while legal challenges to it proceed in lower courts.

It was a victory for the White House, which has seen the courts trim back various iterations of the travel ban, and it bodes well for the administration if the Supreme Court is called upon to finally decide the merits of the president’s actions.

Two lower courts had imposed restrictions on Trump’s new order, exempting travelers from the six countries who had “bona fide” connections with relatives — such as grandparents, aunts or uncles — or institutions in the United States. Those exemptions to the president’s order, issued in the fall, were along the lines of those imposed by the Supreme Court last summer on a previous version of the travel ban.

But in an unsigned opinion Monday that did not disclose the court’s reasoning, the justices lifted the injunctions, which had been issued by federal judges in Hawaii and Maryland.

Justices Ruth Bader Ginsburg and Sonia Sotomayor noted that they would not have lifted the restrictions. The new ban also bars travelers from North Korea and Venezuela, but they were not affected by the injunctions.

The justices said they expected the federal judges reviewing challenges to the order — based on what challengers say are Trump’s animus toward Muslims and lack of authority under immigration laws — to handle the cases with “appropriate dispatch.”

The court’s move is “a substantial victory for the safety and security of the American people,” Attorney General Jeff Sessions said in a written statement. “We are pleased to have defended this order and heartened that a clear majority Supreme Court has allowed the President’s lawful proclamation protecting our country’s national security to go into full effect. The Constitution gives the President the responsibility and power to protect this country from all threats foreign and domestic, and this order remains vital to accomplishing those goals.”

The justices acted just after the American Civil Liberties Union, which is leading one of the lawsuits, sent a letter to the court Monday morning pointing out that Trump last week tweeted links to anti-Muslim videos.

Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, reacted to the court’s order with disappointment.

“President Trump’s anti-Muslim prejudice is no secret — he has repeatedly confirmed it, including just last week on Twitter,” Jadwat said. “It’s unfortunate that the full ban can move forward for now, but this order does not address the merits of our claims. We continue to stand for freedom, equality, and for those who are unfairly being separated from their loved ones.”

[Trump retweets inflammatory and unverified anti-Muslim videos]

The latest iteration of the travel ban, the third Trump has issued, bars various people from eight countries: Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea and Venezuela. Six of the countries have Muslim-majority populations.

But federal judges in Maryland and Hawaii blocked its implementation for “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” They said such people include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews and cousins of people in the United States.

The language was drawn from a Supreme Court decision in June that exempted such foreign nationals from Trump’s second version of the executive order, which expired this fall.

The orders from the two district judges will be reviewed this week. A panel of the U.S. Court of Appeals for the 9th Circuit is set to consider the Hawaii case Wednesday, and the entire U.S. Court of Appeals for the 4th Circuit in Richmond will consider the Maryland judge’s decision Friday.

Lawyers for Hawaii had told the Supreme Court that there was no reason to back away from the “equitable determination, dutifully adhered to by the court below,” that it had already made. If anything, Hawaii’s lawyers said, the government’s case deserves even greater scrutiny than before, as compared with the earlier temporary travel bans.

The president now “has imposed an indefinite one, deepening and prolonging the harms a stay would inflict,” said the brief submitted on Hawaii’s behalf by Washington lawyer Neal K. Katyal.

But Solicitor General Noel J. Francisco, representing the Trump administration, argued that there was no reason for the injunctions.

The new executive order, he wrote, followed a “comprehensive, worldwide review of the information shared by foreign governments that is used to screen aliens seeking entry to the United States. Based on that review, the Proclamation adopts tailored entry restrictions to address extensive findings that a handful of particular foreign governments have deficient information-sharing and identity-management practices, or other risk factors.”

The cases are Trump v. Hawaii and Trump v. International Refugee Assistance Project.

———————–

Leave a Reply

Your email address will not be published.

HTML tags are not allowed.