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Trump May Think He’s Legally Immune From Obstruction Indictment. He’s Wrong.


These days, the line between “keeping abreast of the news,” and an outright quest for schadenfreude is becoming a bit blurred. With Michael Flynn now down, Americans everywhere are watching their television tickers to see whether the next #MeToo domino will fall before or after an indictment is served on a member of the Trump family.

The most important question, though, is “will our president be indicted?”

The most talked about potential charge related to President Donald Trump these days has been obstruction of justice. John Dowd, attorney for President Donald Trump, told Axios that Trump cannot be charged with obstruction of justice, because as president “he is the chief law enforcement officer … and has every right to express his view of any case.”

Harvard Law Professor Emeritus Alan Dershowitz discussed this same idea on Fox News Monday morning, but stopped short of saying that a president is immune from obstruction charges. Dershowitz agreed that Trump cannot be charged with obstruction for firing James Comey, because doing so was within his constitutional power. Likewise, he said asking Comey to stop investigating Michael Flynn was within his power as well.

Still, Dershowitz didn’t say that presidents are immune from all obstruciton charges. He said to charge a president with such an offense, “you need clearly illegal acts … hush money paid, telling people to lie, destroying evidence,” for example.

Should Mueller’s investigation uncover evidence of such acts, another defensive argument that will arise is that President Trump, as a sitting president, is immune from any kind of criminal prosecution. For many, many, years, the standard response to such an inquiry is that a sitting president is unquestionably immune from any and all criminal prosecutions. Like so many things in the pre-Trump age, immunity was essentially assumed, and barely analyzed.

During the Watergate scandal, the issue of presidential immunity was fully briefed and argued before the Supreme Court. However, U.S. v. Nixon  raised quite a few novel and important issues of law, and Court never ruled on presidential immunity; instead, the case was decided on other grounds. At the time, James D. St. Clair was Richard Nixon’s counsel, and Leon Jaworski was the 1977 version of Robert Mueller. St. Clair wrote in his brief, “It has never been seriously disputed by legal scholars, jurists, or constitutional authorities that a President may not be indicted while he is an incumbent.”

St. Clair was right. It never has been seriously disputed by anyone. But that sure doesn’t mean that it couldn’t be.  St. Clair had two main arguments for presidential immunity: 1) because the entire power of the executive branch vests in the president alone, it’s ridiculous to think he could be subject to prosecution; and 2) because the Constitutional provision on impeachment specifically says that an impeached official is subject to prosecution after removal from office, the framers must have meant that those officials couldn’t be prosecuted before they were removed from office.

While those are certainly reasonable arguments, they’re not even close to air-tight. The president might be the chief executive, but he’s not running the branch by himself. He has a large cabinet and extensive staff to assist him. It might be wildly inconvenient for a president to fend off criminal prosecution during his term, but Trump himself has bragged that he could continue running his businesses in tandem with running the country. In essence, this argument amounts to “the president is just too important to waste his time fending off criminal indictments.” While such a line of reasoning might have gotten some traction in 1978, I just don’t see it playing well now. Trump’s arrogant above-the-law persona doesn’t mix well with the judiciary, and even judges would be willing to find presidents immune, I’d be shocked to see them do so on these grounds.

On the second argument, that the wording of the Constitution implies immunity during the president’s term, I’m going to go with what Leon Jaworski said in his brief. The reference to post-office prosecution was simply the framers’ way of insuring that an impeached official could not raise a double-jeopardy objection to a subsequent prosecution. Jaworski also noted that the clause in the Constitution applied to all officials who are subject to impeachment, not just to the President. To me, that makes the interpretation pretty obvious. Officials other than the president can certainly be prosecuted; therefore, it’s not really logical to conclude that the clause prohibited prosecutions of the president or anyone else.

Of course, the two arguments offered in the Nixon case aren’t the only ones that could ever exist; Trump has some crafty lawyers on his payroll, and I’m sure they’ll come up with some other reason to oppose the very concept of presidential indictment. We’ll just have to stay tuned on that one.

While those of us on Impeachment Watch are understandably enjoying watching the fruits of the Mueller investigation ripen, it would be premature to opine on Trump’s ultimate fate. If Mueller does secure an indictment against POTUS, the immunity fight will likely be the first in an Immunity-Acquittal-Pardon trifecta. A loss at the immunity phase would mean the case progresses to a criminal prosecution, where a guilty verdict is hardly a foregone conclusion.

In the event a guilty verdict is obtained, Trump would likely pardon himself – a remedy that, wild as it sounds, might not be technically illegal. Should that happen, there are always state-level prosecutions looming, for which pardons are unavailable.

One thing is almost certain—that the Mueller investigation, its results, the fighting, and the legal maneuvering, are all intense, expensive, and draining; by contrast, impeachment might be a shorter distance between America and its own integrity. The longer this continues, the more it feels like an absurdly contentious divorce; perhaps Congress will be mature about it and just help Trump move out quietly.

A version of this article originally appeared on December 2, 2017.

[image via screengrab]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos