Donald Trump‘s legal team is already working to defend the president from a crime for which he has not been charged — obstruction of justice.
“If I were a lawyer I would not take the strategy of trying to shoot down possible crimes that my client might be charged with in advance,” said Thomas Dupree, former United States deputy assistant attorney general.
Dupree told Global News “it brings us in many respects back to the Nixon era, where there were arguments made that the president can’t be prosecuted under various laws.”
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The preemptive defence from Trump’s lawyer came just hours before CNN reported that White House counsel Donald McGahn had told Trump in January that he believed Flynn had misled both the FBI and the vice-president.
The spectre of potential obstruction of justice charges has hung over Trump’s head since he admitted to NBC News that he fired former FBI director James Comey because of his dissatisfaction with Comey’s handling of the Russia probe, and since Comey testified that Trump pressured him to “drop” the investigation into former national security adviser Michael Flynn.
Things escalated after what many legal minds describe as an ill-advised tweet from Trump on Saturday, in which the president seemed to admit he fired Michael Flynn “because he lied to the vice-president and the FBI.”
“Oh my god, he just admitted to obstruction of justice,” tweeted former Department of Justice spokesman Matthew Miller, pointing out that if Trump knew that Flynn had committed a crime (lying to the FBI) when he asked then FBI director James Comey to “drop” the investigation into Flynn, that would constitute perverting the course of justice.
Trump’s tweet was apparently so troublesome that White House advisers and lawyers quickly tried to walk it back.
John Dowd told several media outlets on Sunday that he wrote the tweet and sent a draft to Trump’s social media director Dan Scavino to post. NBC News reports that when Dowd was asked for a copy of the original email, he then said he had dictated it to Scavino.
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By Monday, Dowd had switched to the new strategy of suggesting that Trump would be immune from prosecution.
Over a dozen legal experts weighed in via the American media Monday and the overwhelming consensus is that Trump can indeed be prosecuted. Article II of the American Constitution outlines the president’s powers, but the text also requires that he or she “take Care that the Laws be faithfully executed.”
The president cannot exercise his given powers in a corrupt manner and remain above the law, scholars argued Monday. While there’s no question that Trump had the constitutional power to fire James Comey, for example, if he had done so after receiving payment to fire him and hire someone else in his place, that would still be considered bribery. And if he fired Comey in order to prevent the FBI from getting to the bottom of Russian influence during the election, the experts argue that’s still obstruction.
History is also not on Dowd’s side. The Articles of Impeachment against Richard Nixon began right off the top by saying he “obstructed, and impeded the administration of justice.” In 1998, the House of Representatives similarly impeached former president Bill Clinton on the grounds of both perjury and obstruction of justice.
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As Thomas Dupree explained, while the President is technically the head of the executive branch, and has the power to oversee investigations and make personnel changes within the FBI and Department of Justice, exercising that authority could result in a complicated legal battle.
“Where does the president’s power to run the executive branch end and obstruction of justice begin?” Dupree said, suggesting there can be no absolutism about whether the president is above the law.
The controversial interpretation of the constitution from Trump’s own lawyers suggests there’s a level of panic inside the White House, with the president himself sending out several angry tweets about the Russia probe over the course of the weekend, after Robert Mueller secured Flynn as a cooperating witness, in exchange for a guilty plea on the charge of lying to the FBI.
— With files from Global News reporter Monique Scotti