Trump’s lawyers mount a new defense: A president can’t obstruct justice. Is that true?

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Trump “is the chief law enforcement officer of the United States,” Dowd told USA TODAY. “He cannot obstruct himself!” Some lawyers were skeptical.

As part of his wide-ranging investigation into Russia’s election interference, special counsel Robert Mueller is investigating whether Trump improperly pressured Comey to end the investigation of his former national security adviser, Michael Flynn, and his decision to fire the FBI chief three months later. 

Trump has denied that he asked Comey to drop the investigation. But his chief lawyer, John Dowd, suggested Monday it wouldn’t even matter if he had – because a president cannot obstruct justice by telling the FBI how he hopes a criminal investigation will be resolved.

“He is the chief law enforcement officer of the United States,” Dowd said in an email to USA TODAY. “He has more power and discretion on that matter that DOJ and FBI put together. He cannot obstruct himself!” 

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Dowd made the assertion days after Flynn pleaded guilty to a felony count of lying to FBI agents about his conversations with the Russian ambassador to the U.S. The retired lieutenant general also promised to cooperate with Mueller’s investigation into Russia’s election meddling and possible collusion with Trump associates, bringing the probe to the president’s inner circle. 

Flynn’s plea touched off a round of speculation in Washington about what he might have offered prosecutors in exchange for a deal. But it was the White House’s own reaction that breathed new life into questions of possible obstruction when it comes to Flynn. 

Trump wrote on Twitter over the weekend that he “had to fire General Flynn because he lied to the Vice President and the FBI.” Trump had previously blamed the Feb. 13 firing on the fact that Flynn misled Vice President Mike Pence about his conversations with ambassador Sergey Kislyak during the presidential transition. Until Saturday, Trump had not acknowledged that the he also knew Flynn had lied to the FBI when agents interviewed him on January 24. 

The detail heightened scrutiny on a private Oval Office meeting between Trump and Comey the day after Flynn was fired. During that meeting, Comey later testified to a Senate panel, Trump told him that Flynn was “a good guy” and said, “I hope you can let this go.” Comey testified that he “took it as a direction” to drop the probe into Flynn, but did not obey it.

Dowd said Monday that White House lawyers did not expressly tell Trump that Flynn had lied to the FBI before he was fired. Rather, he said, Trump was told that Flynn “had said to the agents what he said to VP.” 

If Trump knew Flynn committed a possible felony by lying to FBI investigators, that could be a significant admission when it comes to obstruction of justice, according to lawyers who have followed the investigation. 

“It’s harmful to him,” Georgetown University law professor Michael Seidman said. “If he knew that somebody committed a violation and is trying to stop the investigation, that makes it much harder to prove that it wasn’t corrupt.”

Seidman and other lawyers cautioned that Trump’s tweet is far from conclusive evidence of wrongdoing. But they said that laws making it a federal crime to “corruptly” interfere with legal proceedings make no special exemption for the president. 

“The president has lots of powers and has lots of things he can do, but he still can’t do it for an improper purpose,” said Barbara McQuade, a former U.S. attorney in Detroit. 

For instance, McQuade said, Trump “has an almost absolute power to pardon someone – but he couldn’t do it for an illegal purpose, like say a bribe.” 

Even so, while Congress has other ways to punish a president for trying to obstruct justice through impeachment, it remains an open question whether he could be prosecuted. 

Prosecutions for obstruction of justice are infrequent and can be difficult even when it’s someone other than the commander-in-chief. Prosecutors have to prove that a person specifically intended to meddle with the proceedings, a high bar to clear.

What’s more, while courts have ruled that laws prohibiting people from obstructing a “proceeding” apply to trials, grand juries and even U.S. Securities and Exchange Commission investigations, they haven’t made a clear determination on whether they would even apply to FBI investigations. Most of the cases charged under the law are against people who tried to conceal evidence or pressure witnesses in court cases. 

Judges have ruled that conduct that would otherwise be legal can become obstruction of justice if it is done for an improper purpose. For instance, former federal corruption prosecutor Randall D. Eliason said, “I have the right to throw my laptop in the river, but if I do that with intent to destroy evidence, then it becomes obstruction.” 

And some federal courts have suggested that obstruction laws are meant to stop a broad array of tampering. The law, the U.S. Court of Appeals for the Fifth Circuit wrote in 1992, “was drafted with an eye to the variety of corrupt methods by which the proper administration of justice may be impeded or thwarted, a variety limited only by the imagination of the criminally inclined.” 

Even if the law applies, though, it remains unclear whether a president could ever face criminal charges for breaking it. The Justice Department has long taken the view that a sitting president cannot be prosecuted for obstruction or any other crime. Under that view, only Congress would have the power to act against him through its impeachment powers, which are not necessarily constrained by the elements of federal crimes.

It’s not a new idea. Lawmakers cited obstruction in impeachment proceedings against presidents Richard Nixon and Bill Clinton. In 1998, the House of Representatives impeached Clinton on charges of perjury and obstruction of justice related to a sexual harassment lawsuit. 

In this case, Dowd said Trump “had every right to express his ‘hopes’ for Flynn.” He declined to further elaborate, instead referring to comments made by Harvard Law School professor Alan Dershowitz.  

“You cannot charge a president with obstruction of justice for exercising his constitutional power to fire Comey and to tell the Justice Department who to investigate and who not to investigate,” Dershowitz said on Fox Monday. 

Trump, on Twitter, described the segment as “a must watch.” 

More: Flynn’s plea deal puts Mueller inside Trump’s inner circle with a message: ‘We’re coming for you’

More: President Trump defends Michael Flynn for lying to FBI by claiming Hillary Clinton did the same thing

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