How can President Trump obstruct justice? Let me count the ways.
- He can destroy evidence, such as 33,000 emails.
- He can instruct others to destroy evidence, such as 33,000 emails.
- He can conceal evidence, such as law firm billing records.
Wait, that was Hillary Clinton. Sorry.
What must Donald Trump do to obstruct justice? He must alter, destroy, or conceal physical evidence. He can interfere with a criminal investigation. Details of these things are listed in Title 18 of the US Code. And it is the last one that the Left is screaming about.
There’s no evidence whatever that the President is in any way altering, destroying, or concealing physical evidence. If that was the case, with the way that Robert Mueller’s investigation leaks, we’d know about it. So we don’t have to wonder if there are eighteen minutes missing somewhere. But has he been illegally gumming up the works?
Let’s get one thing clear from the get-go. The Department of Justice is not an “independent” agency of the Federal Government. Constitutionally, there are no “independent agencies.” Every agency is part of one of the three branches, and is governed by those branches. So the Congressional Budget Office is ultimately under the control of Congress. And the DOJ is part of the Executive Branch.
As we look at that antique piece of parchment, Article II, section 2 states that the President shall have the power to appoint “all other Officers of the United States.” That is a plenary power subject only to Congressional veto. And then the Congress can only overrule the President by a two-thirds majority.
Let’s put this in plain English. The DOJ consists of “other Officers of the United States.” The President has absolute authority to appoint (and un-appoint) officers of the DOJ. There are only a handful subject to Senate confirmation. All others serve at his pleasure. He can legally fire the lot simply because he wants to.
Let’s not confuse this legal authority with complete immunity for his actions. The Congress can decide that he’s gone off the reservation by firing people and impeach him. But the blue dress demonstrates how hard it is to actually remove the President.
So can a President be charged with obstruction of justice? Alan Dershowitz has argued that he cannot, since the President is, in fact, the supervising officer over the DOJ. This noted liberal law professor bases his opinion on the simple fact that firing James Comey was fully within the President’s authority. Other places he has pointed out that the President has the authority to specifically direct the DOJ to drop an investigation. Thomas Jefferson did it in 1801, so it’s a very long tradition. Richard Nixon did it in 1971. It’s called “prosecutorial discretion.” And if that’s not enough, the President can issue a pardon, and that cannot be revisited by anyone.
But Dershowitz seems to stop his argument at actions that are within the President’s legal authority. Another liberal law professor, Jonathan Turley, takes the argument outside Trump’s legal authority. He states, “he cannot take official actions — even discretionary actions — for a criminal purpose. Thus he cannot fire the IRS commissioner to stop him from auditing his personal taxes. Of course, this also means that, absent clear evidence of criminal intent, a president has a low threshold to clear in justifying a decision to fire someone like Comey.”
Thus, to support a legal argument that President Trump has obstructed justice, the DOJ must find “interference, through words or actions, with the proper operations of a court or officers of the court.” It’s not enough to fire an FBI director he doesn’t like. He has to stop all criminal investigations into himself. And this raises a question. What is “criminal?
A criminal act is one which is contrary to law. At this point we have to ask, what crime is being investigated? When Deputy AG Rosenstein appointed Mueller, he specifically tasked him with a counter-intelligence investigation. He did not set him up to look into a criminal matter. Item (c) authorized him to prosecute criminal offenses that might be discovered, but those were incidental to the primary task.
Mueller is not investigating a crime. “Collusion” does not appear in the criminal code. Neither does “links and/or coordination” between Russia and the Trump campaign. Thus, if President Trump were to shut down the Mueller investigation today, it would not be criminal. Therefore, it would not be obstruction. Again, it might be considered impeachable, but that’s a term of art, not a crime. Thus, coordination with Russia, if it happened, would not be a criminal act.
This leaves the President with a sticky problem. How can he shut down the Mueller probe without getting himself into an impeachment quagmire? There appears to be one good way out.
Deputy AG Rosenstein needs to receive a direct instruction from the President. If Mueller has not uncovered any evidence of criminal action by the President, Mueller must terminate the probe immediately. No ifs, ands, or buts. All his hired guns will leave. Further, everyone who has participated in the probe will sign a strict non-disclosure agreement. Since there is no criminality on the President’s part, this action is fully within the President’s prerogatives.
Next, the Deputy AG must direct the Special Counsel to prepare a report, which will be carefully reviewed by the Deputy AG before release, explaining clearly that there is no evidence of criminal action by the President. Since the evidence has been adequately examined, there is no reason to pursue it further.
Such a report will be received with much wailing and gnashing of teeth by the Left who can only accept a public hanging. But because it comes from someone they have declared to be without blemish, there is no way they can make a reasoned objection. Yes, they will scream, but that’s what the Left is best at.
Once the Special Counsel has vacated the premises, the President will need to find a new target for his Tweets, but I’m sure he will have no difficulty with that. On the other hand, the Left will have lost the only real public weapon they have against the legitimacy of the Trump Presidency.
Such a tragedy…