The bad news for President Donald Trump keeps coming his way, notwithstanding a generally bravura performance on the foreign stage this past week in Riyadh, Jerusalem and Vatican City. Yet while he was overseas, his colleagues here in the United States have been advising him to hire criminal defense counsel, and he has apparently begun that process. Can the president be charged with obstructing justice when he asks that federal investigations of his friends be shut down?
Most legal scholars agree that the president cannot be prosecuted while in office and that the appropriate remedy for presidential criminal wrongdoing is impeachment.
Impeachment, of course, is traumatic for the country, as it involves Congress’ dislodging from the presidency the person validly, legally and constitutionally entitled to hold it. Under the Constitution, the House of Representatives serves as a sort of grand jury and determines whether to impeach by a simple majority vote. The charge must be for treason, bribery or another high crime that strikes at the integrity of the government. Obstruction of justice — interfering with a criminal prosecution — is probably one of those crimes.
I say “probably” because, though the Supreme Court has not ruled on this, it formed the basis of the charges brought against President Richard Nixon and those prosecuted against President Bill Clinton, and the legal community has generally accepted obstruction of justice as the type of high crime intended by the Framers to be a basis for impeachment. Nixon resigned from office prior to impeachment. Clinton was impeached by the House but acquitted by the Senate, which failed to muster the two-thirds majority needed to convict him and remove him from office.
What is the case against President Trump?
The short answer is: So far, nothing. Though I did not vote for Trump and though I differ with him on many issues and on his tone and manner of governing, he is the president, and I want him to succeed in shrinking the government and liberating the free market. Nevertheless, there are forces at work inside the government and elsewhere that have leaked a disturbing series of private communications involving the president. This leaked information can fairly be characterized as painting a picture of a president fearful of a criminal investigation, long underway by the FBI, and determined to impede it.
The New York Times has reported on Trump’s efforts to persuade then-FBI Director James Comey to cease the investigation of retired Army Lt. Gen. Michael Flynn, Trump’s former national security adviser, as well as of the Trump campaign. The unsupported allegations against Flynn are that he was a secret foreign agent at the time he was the president’s national security adviser. The unsupported allegations against the Trump campaign are that it conspired with Russian intelligence agents to influence the presidential campaign by hacking into the computers of Trump’s adversaries.
Trump’s detractors claim that he attempted to place material impediments between the FBI and his former colleagues, including Flynn, when he asked Comey to dial back the investigation and then fired Comey when he declined to do so. The Washington Post has reported that Trump again attempted to place roadblocks in the way of the FBI investigation by asking the director of national intelligence and the director of the National Security Agency to deny publicly the existence of any evidence of Trump campaign and Russian collusion during the campaign.
Both directors declined to do as the president wished, even though one of them, Director of National Intelligence Daniel Coats, had just been appointed by the president and the other, Adm. Mike Rogers, is legally obligated to follow the orders of the president as commander in chief, unless he believes that the orders are unlawful.
Pertinent to all of this is the concept of the unitary executive. That concept, which was accepted in theory by the federal government until the Watergate era, states that the president is the chief executive officer of the federal government and therefore everyone in the executive branch works for him. Because he and he alone in the executive branch is answerable to the voters, this theory relates, there can be no people or entities in that branch that are not subject to him. Were this not so, then vast areas of governance would take place and vast amounts of government resources would be spent by those not answerable to the people, and that would violate the right of the people to be governed by a government to which a majority of the voters in the states have consented.
Under the unitary executive theory, the FBI director and the director of national intelligence, as well as the director of the NSA and everyone else who works in the executive branch, are obliged to follow all orders and requests of the president or resign and then reveal the reasons for their resignations. Under the theory of those who champion the resistance to what they claim were Trump’s efforts to impede the FBI investigations, the resisters have a moral and ethical duty to pursue wrongdoing that is arguably violative of federal law, notwithstanding the president’s wishes — especially if that wrongdoing has been committed or facilitated by the president himself. They argue that if President Trump does not want Flynn or his own campaign colleagues to be prosecuted for whatever reason, he can pardon them and thereby legally and constitutionally terminate the investigations. There would be enormous political consequences for doing that but no legal consequences for the people pardoned.
Which side is right under the law? There is no generally accepted answer here. But if Donald Trump wants to stay in office, he needs to be well-grounded in the powers of the presidency and their just and lawful use. He could govern by prudent public orders and take his chances, or he could govern by private personal intimidations and take his chances. But the latter would be far more dangerous to his tenure in office.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel.