FACT CHECK: Can A President Be Charged With Obstruction Of Justice?

Emily Larsen | Fact Check Reporter

President Donald Trump’s personal lawyer, John Dowd, claimed Monday that the president cannot be charged with obstruction of justice.

Verdict: Unsubstantiated

The law is not clear about whether sitting presidents can be charged criminally, but legal experts agree that obstruction of justice charges can be brought during the political process of impeachment.

Fact Check:

Obstruction of justice is the act of intentionally interfering with the administration of justice, such as impeding a criminal investigation or tampering with evidence. It has been criminalized in several federal statutes.

Trump has faced accusations of obstruction of justice for reportedly asking former FBI Director James Comey to drop an investigation into former White House national security advisor Michael Flynn.

After Trump seemed to acknowledge in a tweet Saturday that he knew Flynn had lied to the FBI, politicians and commentators argued the tweet provides more evidence that Trump meant to obstruct justice when he subsequently fired Comey.

Trump’s personal lawyer pushed back, telling Axios Monday that the president “cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case.”

But there’s a lack of legal consensus on whether a sitting president can be federally prosecuted for obstruction of justice.

“A President can probably be guilty of obstructing justice if he impedes an investigation to coverup guilt by him or his allies, but it’s not clear whether he could be indicted for it while President,” Steven Mulroy, a law professor at the University of Memphis, told The Daily Caller News Foundation.

The official position of the Department of Justice (DOJ), set under the Nixon administration and reaffirmed under the Clinton administration, is that the president cannot be indicted, saying the threat of prosecution would “undermine the capacity of the executive branch to perform its constitutionally assigned functions.”

But some within the DOJ have historically disagreed with that position, notably the special prosecutors who investigated former Presidents Richard Nixon and Bill Clinton.

There’s also a question of whether constitutionally authorized presidential acts can be considered obstruction of justice. “A president can be charged with obstruction of justice under criminal law, but only if he goes beyond his constitutional powers,” Alan Dershowitz, professor emeritus of Harvard University, told TheDCNF.

Since the president is the chief law enforcement officer, Trump’s firing of Comey does not by itself constitute obstruction of justice, says Dershowitz. But if a president hypothetically bribed his FBI director to drop an investigation, or obstructed justice in other ways, that would count as obstruction of justice.

Other legal scholars refute Dershowitz, and say if it’s proven that a president fired someone due to corruption or bribery, he can be impeached on these grounds.

“If a President hires, fires, or blocks an investigation based on his legitimate policy preferences, that’s fine,” said Mulroy. “But if he does it to cover for an enemy spy, it’s treason; if he does it for money, it’s bribery. The same is true for obstruction: if he’s blocking an investigation, it matters whether he’s protecting a cooperating witness, or covering up his own crimes.”

But Dershowitz maintains that attempting to decipher the motives behind a president’s use of authorized executive powers would lead to a constitutional crisis.

“You don’t psycho-analyze presidents,” said Dershowitz.

The Supreme Court has never answered the question of whether a president can be indicted with a criminal offense while in office, so there is no set legal standard.

Some legal scholars believe that presidents are insulated from indictment because the framers used impeachment as a tool to remove a sitting president. “The framers implicitly immunized a sitting president from ordinary criminal prosecution,” Akhil Reed Amar, a law professor at Yale, told The New York Times.

A president can be removed from office for what Congress deems to be “high crimes and misdemeanors,” and impeachment proceedings against Nixon and Clinton both cited obstruction of justice. “Most people agree that at the very least, obstruction of justice would be an impeachable offense,” said Mulroy.

Even though Congress could impeach Trump for obstruction of justice, it’s unlikely a Republican-controlled Congress would do so.

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Emily Larsen

Fact Check Reporter