Trump Lawyers Try to Take Obstruction Charges Off the Table

(Bloomberg) -- Just six weeks ago, Donald Trump’s lawyers insisted they hadn’t spent much time researching whether laws on obstruction of justice apply to the president. 

After the guilty plea by Trump’s former national security adviser, Michael Flynn, the explanation shifted.

Now, Trump’s legal team says it’s no longer a question of whether Trump’s firing of FBI director James Comey could be considered obstruction of justice. They now say it’s impossible for the president to be charged with that crime at all.

The shift comes as legal experts say Trump dramatically increased his legal peril by tweeting that he knew Flynn had lied to the the FBI when he fired Comey. If Trump fired Comey to prevent him from prosecuting Flynn, these experts say, that would amount to obstruction of justice.

The White House had previously sidestepped that question. Now Trump’s lawyers insist it’s moot.

John Dowd, Trump’s personal lawyer, described the president as "the chief law enforcement officer" in a statement to reporters, saying the president cannot obstruct justice under the executive powers in the Constitution. That goes beyond previous arguments made by the White House that have been focused more narrowly on defending Trump’s decision to fire Comey.

Pressure on Trump

Special Counsel Robert Mueller’s investigation has been intensifying over the past month, putting added pressure on Trump and his legal team. The special counsel secured a guilty plea from Flynn for lying to FBI agents and has charged Trump’s ex-campaign manager Paul Manafort with money laundering. Mueller was also conducting interviews last month with top White House officials.

At the beginning of Mueller’s investigation, Trump’s legal team had an academic discussion over whether a president could obstruct justice by firing the FBI director, said a person familiar with the conversations. Comey told Congress that Trump had asked him to go easy on Flynn, a conversation that happened several weeks before the firing.

Trump’s lawyers determined that most legal scholars would say that a presidential firing couldn’t be seen as obstruction unless there was a corrupt motive, since the president has the power to fire whomever he wants, the person said. The lawyers also made the case that firing Comey did nothing to stop the investigation.

But there was never a broader discussion early on about whether the president could obstruct justice in any matter, the person said.

‘Facts Don’t Require It’

More recently, White House lawyer Ty Cobb said the president’s legal team still hadn’t spent much time examining the question.

"I haven’t actually explored that because the facts don’t require it," Cobb told the New York Times in late October.

Dowd, when asked Monday if there was anything further to add the issue of obstruction, responded by referring to a Fox News interview with Harvard Law School professor Alan Dershowitz Monday, where he said there would have to be "clearly illegal acts," such as a bribe or destruction of evidence, for a president to be charged with obstruction of justice.

"There’s never been a case in history where a president has been charged with obstruction of justice for merely exercising his constitutional authority. That would cause a constitutional crisis in the United States," Dershowitz said.

‘Strange Interpretation’

But Republican Senator Jeff Flake of Arizona, a member of the Judiciary Committee, said he doesn’t agree with Dershowitz or Dowd.

"That’s a strange interpretation of the Constitution," said Flake, who has said he won’t run for re-election in 2018.

Democrats also disagreed with Dowd’s remarks, with Representative Jerrold Nadler of New York, now the ranking House Judiciary Democrat, saying, "Such a ‘Nixonian’ outlook on our rule of law is beyond dangerous, and demonstrates yet again this administration’s contempt for our democracy."

Several Democrats noted that during the GOP impeachment of President Bill Clinton, a number of Senate Republicans, including Trump’s attorney general Jeff Sessions -- then a senator from Alabama -- voted to remove Clinton from office for obstruction of justice.

"There is now more than enough evidence to form the basis of a congressional investigation into the president’s obstruction of justice -- and it is long past time that the House Committee on the Judiciary engage on this matter," Nadler said.

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