- President Donald Trump’s defence team is arguing that Trump cannot be charged with collusion or obstruction of justice – the central threads of the special counsel’s Russia investigation.
- Two of Trump’s key defence lawyers, John Dowd and Jay Sekulow, have said in recent days that collusion is not a crime and that Trump as president cannot be guilty of obstruction because he “has every right to express his view of any case.”
- Legal experts have pushed back on the claims, saying that Trump’s lawyers are ignoring the crux of the obstruction case and that he could be found guilty of crimes resulting from collusion.
President Donald Trump’s legal defence team is adopting a bold new strategy as the Russia investigation reaches a boiling point: arguing that a sitting president can’t obstruct justice.
The president “cannot obstruct justice because he is the chief law enforcement officer” under Article II of the Constitution “and has every right to express his view of any case,” Trump’s lawyer John Dowd told the news website Axios.
The comment seems to confirm previous reports that Trump’s legal team was working over the summer to convince the special counsel Robert Mueller that Trump can’t be found guilty of obstruction because he has the constitutional authority to fire whomever he wants.
The question of whether Trump tried to impede an ongoing FBI investigation reemerged on Saturday when he tweeted a potentially incriminating claim. The day before, his former national security adviser, Michael Flynn, pleaded guilty to lying to the FBI about his conversations with Russia’s ambassador.
“I had to fire General Flynn because he lied to the Vice President and the FBI,” Trump said. “He has pleaded guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!”
Dowd told Axios that the claim that the tweet was an admission of obstruction was “ignorant and arrogant.”
But if Trump knew Flynn was in the FBI’s crosshairs when, one day after Flynn resigned, Trump asked the FBI Director James Comey, whom he later fired, to consider dropping the bureau’s investigation into Flynn, that could dramatically bolster the obstruction case federal prosecutors are building.
A CNN report published Monday said the White House counsel, Don McGahn, told Trump he thought Flynn had not been truthful with either Vice President Mike Pence or the FBI, bolstering the possibility that Trump was aware Flynn had misled the bureau when he asked Comey to drop the investigation.
But McGahn did not explicitly tell Trump that Flynn had committed a crime or that he was under criminal investigation, according to the report.
Trump can ‘tweet anything he wants’ – but firing is an action
Jeff Cramer, a former federal prosecutor, said Dowd’s argument held some water because the question of whether the president can be charged with obstructing justice is not “settled law” and that “you can’t be prosecuted for saying things.”
“But firing the FBI director is an action,” Cramer said. “Trump can tweet anything he wants – that’s not against the law. But when he fires the FBI director, now it’s starting to take shape.”
Trump abruptly fired Comey in May, three months after asking him if he could see his way “clear to letting this go, to letting Flynn go,” Comey said in testimony to the Senate Intelligence Committee in June. Before his firing, Comey was leading the FBI’s investigation into Russia’s interference in the 2016 election and whether any of Trump’s associates colluded with Moscow.
“He is a good guy,” Trump said, according to Comey’s testimony. “I hope you can let this go.”
Comey said he gave no indication he would do so.
Days after firing Comey, Trump told NBC’s Lester Holt that “the Russia thing” was on his mind when he dismissed him.
Robert Costello, a former deputy chief of the criminal division in the US Attorney’s Office for the Southern District of New York, said Monday that he thought Dowd’s argument held merit.
“Suppose the president makes a statement about the economy and various stocks go way up,” Costello said. “Can the president then be accused of manipulating the stock price and violating securities laws? No. He’s entitled to do what he’s doing.”
But other experts pushed back on that assertion, arguing that Dowd was avoiding the crux of the obstruction case.
Jens David Ohlin, the vice dean at Cornell Law School who’s an expert in criminal law, said Dowd was making an “absurd argument that reeks of royal absolutism.”
Dowd’s argument “basically boils down to the maxim that Trump is the law,” Ohlin said. “That’s just not true. Even the president has to follow the law.”
“Recent historical precedent contradicts [Dowd’s] view as well,” he added, pointing to the impeachment process against former President Richard Nixon over, among other things, obstruction of justice.
Claire Finkelstein, a professor at the University of Pennsylvania Law School, echoed that point and emphasised that it was important to look at the entire timeline of events surrounding Comey’s firing.
“It doesn’t matter that Trump had the power to fire the FBI director,” she said. “He can’t fire Comey when the intent behind it is to cover up” his or his associates’ “possible misdeeds.”
The idea that collusion could be legal is ‘absurd’
The president’s legal team has also echoed a claim that began earlier this year in right-wing media circles: that collusion is not a crime.
“For something to be a crime, there has to be a statute that you claim is being violated,” Trump lawyer Jay Sekulow recently told The New Yorker. “There is not a statute that refers to criminal collusion. There is no crime of collusion.”
Andy Wright, a professor of constitutional law at Savannah Law School, said in a previous interview that if Americans agreed to assist illegal Russian influence operations, “it could create a conspiracy, which is a federal crime.”
Additionally, Wright said, American citizens colluding to illegally affect an election “could constitute aiding and abetting that foreign power’s criminal campaign finance violation.”
Ultimately, questions about whether the Trump campaign’s encouragement of Russia’s cyberattacks constituted a form of collusion revolve around whether Trump and his associates incorporated Moscow’s meddling into their overall campaign strategy, according to Robert Bauer, a former White House counsel.
That includes whether “specific plans” were made to build messaging around hacked emails and WikiLeaks’ release of them – and whether the campaign made a conscious decision not to denounce the Russians so that the meddling would continue.
“Was the message intended for Russia discussed during preparations for the presidential debate, which would explain Mr. Trump’s special care in refusing to assign direct blame for the hacking to the government or to reject any assistance from the hackers?” Bauer, now a partner at the law firm Perkins Coie,wrote earlier this year.
The idea that collusion is legal, moreover, is “absurd,” said Mark Kramer, the program director for the Project on Cold War Studies at Harvard’s Davis Center for Russian and Eurasian Studies.
He said that the form that collusion would have taken – hacking, a clandestine transfer of funds, conspiracy – would on their own be serious crimes.
More broadly, Wright said, the notion that it would be above water for an American presidential candidate to leverage a foreign adversary to subvert an election “would really signal the death of outrage.”
And those repeating the talking point are also ignoring the possibility that the candidate would then be beholden to that foreign government – and irrevocably compromised.
“Our national security clearance system relies on being able to vet foreign sources of leverage,” Wright said. “Of course, the premise of ‘kompromat’ is shame. Some of the president’s defenders appear to be post-shame.”