There is an old adage that the cover-up is often worse than the crime. President Richard Nixon resigned, and President Bill Clinton was impeached—both because of what they did to cover the tracks of petty wrongs, not because of the underlying wrongs themselves. This history has buoyed critics of President Donald Trump, even though Special Counsel Robert Mueller’s probe of Russian meddling in the 2016 election has turned up no evidence of collusion that we know of thus far. The Russia story has shifted from collusion to obstruction.
The recent guilty plea by Trump’s former national security advisor, Michael Flynn, for lying to the FBI is the first step in building an obstruction case against Trump. Remember that the president allegedly told then FBI Director James Comey in a furtive Oval Office meeting to back off Flynn, and fired Comey when the investigation proceeded. The specter arose again over the weekend when a Trump tweet suggested he knew that Flynn lied to the FBI when he urged Comey to drop the case.
Arguably, Trump’s actions violated several provisions of federal law that prohibit individuals from acting “corruptly” in trying to influence, obstruct, or impede the due administration of justice. Articles of impeachment against presidents Nixon and Clinton were based in part on obstruction of justice.
The Trump team floated a trial balloon defense in response to the shifting investigation: Presidents cannot obstruct justice, since they get to determine in the first instance what is justice in a particular case. Responding to the morphing of the Mueller probe, Trump’s personal lawyer, John Dowd, told NBC News 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.”
The legal debate can be technical, but the easy answer—that presidents can obstruct justice—can be illustrated with a simple example. Consider two cases. In the first case, a defendant is found with heroin. Notwithstanding the overwhelming evidence of guilt, the prosecutor decides not to bring the case on the ground that doing so would be unjust on the particular facts.
Has the prosecutor obstructed justice? Clearly not. While the prosecutor could be said to be impeding the administration of justice, as defined by the statute, the decision is not corrupt. The decision was based on a view of the law, an allocation of scarce resources, and an independent judgment of what is just. The discretion granted all prosecutors embeds the power to determine the scope of justice.
But, what about a second case in which only one fact is changed: the defendant is the prosecutor’s son? In that case, the decision to not bring the case now looks more like favoritism or self interest than an independent assessment about justice. It violates the rule of law—the notion that the law should apply equally to everyone.
The analysis is the same for the president. It would not be obstruction of justice if Trump instructed the Department of Justice to no longer focus scarce resources on certain drug cases, but it would be if he told Attorney General Jeff Sessions to not prosecute Don Jr. if he were found with a brick of heroin. One could criticize Trump in the first case, as some did President Obama when he issued an executive order protecting so-called Dreamers, on the grounds that he was not taking care to faithfully execute the laws passed by Congress. But the better view is that except in extreme cases, presidents have wide latitude to set priorities. Favoring oneself or one’s close family, friends, or advisors on the other hand, smacks of corruption.
A big problem remains: How far should this net sweep? During the height of the investigation of Hillary Clinton’s email server, President Obama told 60 Minutes, “I don’t think it posed a national security problem.” This very public conclusion announced by the chief law enforcement officer was clearly intended to influence an ongoing investigation, and FBI agents on the case said as much to The New York Times. But was it “corrupt”? President Obama’s legacy was at stake in the election, and there is little doubt he was serving his own interest, as well as Clinton’s, by commenting on the investigation. This seems as strong a case for obstruction as that against President Trump, who may have also had a dual purpose in trying to shut down the Flynn investigation.
Presidents are not above the law, even though they have a greater role in shaping it than anyone else. Presidents can obstruct justice when they act corruptly. The problem is that corruption is likely in the eye of the beholder.
Todd Henderson is the Michael J. Marks Professor of Law & Mark Claster Mamolen Research Scholar at The University of Chicago Law School.