Over the weekend, Donald Trump’s outside lawyer John Dowd decided he would take the fall for an errant presidential Twitter outburst.
At issue was the following rather unfortunate attempt on Trump’s part to “explain” what went on with disgraced former national security adviser-turned Mueller witness Michael Flynn:
That was all kinds of stupid. Because what it suggests is that Trump knew Flynn had lied to the FBI when the President attempted to convince then-FBI Director James Comey to drop the investigation.
Realizing the screwup, Dowd tried to claim that he in fact drafted that tweet, an absurd assertion for any number of reasons not the least of which is that Donald Trump has enough legal problems without his own lawyers implicating him in obstruction of justice.
The White House, when questioned, admitted that the entire thing was “sloppy” – an understatement of epic proportions.
Here’s how Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, described this situation on Tuesday:
Trump personal lawyer John Dowd is facing the worst possible fate of a Beltway barrister. He is about to become a noun, verb and adjective. It is a lonesome position that Robert Bork found himself 30 years ago when blocked for the Supreme Court. Now nominees are often evaluated according to whether they are “Borkable” or likely “to be borked.” A Dowd may soon be the operative term for a legal action that is so self-destructive and stupid as to compromise not only a client but yourself. More specifically, it could be simply the shorthand for “death by tweet.”
Dowd’s predicament arose after Washington was set alight by what may be the single most moronic tweet in the checkered tweet history of the administration. The president sent out a tweet responding former national security adviser Michael Flynn’s plea agreement by saying “I had to fire General Flynn because he lied to the vice president and the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!”
It is hard to imagine how Dowd could ethically continue to perform his duties as an attorney after compromising himself and his client so thoroughly. Dowd is now an obvious potential witness for special counsel Robert Mueller. There is no reason why Mueller should accept his claim that Trump did not approve these words or that the admission did not reflect Trump’s knowledge at the time of the Flynn firing in February.
Turley’s assessment of the “sloppy” spin: “Calling it sloppy drafting is like calling the Titanic incautious navigation.”
Perhaps aware that an obstruction charge may be in the cards, Dowd tried something else on Monday. Specifically, he said this:
The “President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case,” Dowd claims.
Dowd: “The tweet did not admit obstruction. That is an ignorant and arrogant assertion.”
As we noted first thing Monday morning, the only thing “ignorant and arrogant” there is the idea that the President is above the law.
Well since then, the debate has shifted to whether Dowd is correct and unsurprisingly, the consensus is that he is not and if he is, he definitely shouldn’t be.
For one thing, there’s this rather inconvenient piece of historical precedent:
But if that’s not enough for you, we thought we’d excerpt 5 of the 13 quotes Vox compiled from legal experts weighing in on the idea that the President is above the law. Enjoy…
Asha Rangappa, former FBI agent and senior lecturer, Yale University
The days of crazy King George III ended with the Battle of Yorktown in 1781. We now have a nation of laws, not men. While the president is the head of the executive branch, there are provisions in the Constitution that constrain the president’s ability to interfere with investigations or shut them down (or start them) at will.
For one thing, Article II, which outlines the president’s powers, requires that he “take Care that the Laws be faithfully executed.” This means that his official actions taken with regard to the administration of justice must be made in good faith. In addition, the Fifth and 14th Amendments require that he ensure that all persons enjoy “equal protection of the laws.”
In short, the president is not above the law, and can indeed be guilty of obstructing justice.
Renato Mariotti, former federal prosecutor, 2007 to 2016
Just because the president has the power to do something doesn’t necessarily mean it’s lawful for him to do so. The president can’t fire someone in exchange for a bribe, for example. The president also can’t fire someone based on their race or religion.
In the same way, if the president fires the FBI director or anyone else for a corrupt purpose — such as trying to end an investigation into him or his friends — that’s a crime. The mere fact that he has the power to do that doesn’t make it legal.
This question is extremely important. If the president can fire anyone who investigates him, he is above the law.
Jens David Ohlin, law professor, Cornell University
The president, just like any other member of the public, is subject to the rule of law. If the president could interfere with an investigation into his own criminal behavior, or those of his associates, then the president would be utterly above the law.
That being said, the president does have the authority to fire executive officials that serve at the pleasure of the president. But if he exercises that authority corruptly, he faces impeachment and removal for obstruction of justice. [Richard] Nixon resigned on the eve of a similar situation. If [Gerald] Ford had not pardoned his predecessor, Nixon would have been prosecuted and convicted for obstruction of justice. So even recent history suggests that Trump’s lawyers are wrong when they argue that he has carte blanche to obstruct justice.
Peter Shane, law professor, Ohio State University
It’s nonsense. A president’s constitutional role does not include a prerogative to act corruptly. A president who “corruptly” obstructs or impedes “the due and proper administration of the law” commits a crime. It is worth noting that — although impeachment proceedings are civil, not criminal in nature — articles of impeachment voted against both Nixon and [Bill] Clinton charged obstruction of justice as a violation of the president’s constitutional obligation to take care that laws are faithfully executed.
Lisa Kern Griffin, law professor, Duke University
A president can be guilty of obstruction of justice — look no further than the articles of impeachment against both Nixon and Clinton. There is, of course, a question about whether the sitting president can be criminally indicted, but that is a separate constitutional issue.
That the president has the power to do something does not inherently render it lawful, if he does it for an improper purpose. Imagine that you have a box full of documents that belong to you. You would ordinarily be within your rights to shred those documents if you choose to do so — shredding them alone is not a crime. But if you exercise your control over your own records in order to impede a criminal investigation, now it may be unlawful obstruction.