President Donald Trump sparked fresh accusations of obstruction of justice over the weekend with a tweet indicating that he knew former White House national security adviser Michael Flynn lied to the FBI—but, according to the president's personal lawyer John Dowd, Trump can't possibly obstruct justice because...he's the president.
"Dowd is serving baloney for breakfast. Courts regularly consider otherwise lawful conduct by government officials to be obstruction if undertaken with corrupt intent"
—Norm Eisen, Citizens for Ethics and Responsibility in WashingtonThe "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 said in an interview with Axios.
Many were quick to draw comparisons between Dowd's argument and former President Richard Nixon's infamous statement: "When the president does it, that means it is not illegal."
The articles of impeachment against Nixon included obstruction, but he resigned before the process was complete.
“The President cannot obstruct justice” sounds remarkably similar to Nixon’s “If the President does it, it’s not illegal.” Presumably, you don’t make this argument unless you think he’s going to be charged with obstruction. https://t.co/mev9N6BAaa— Jason Pontin (@jason_pontin) December 4, 2017
Dowd's remarks come just days after Flynn pleaded guilty to lying to the FBI about his conversations with Russian ambassador Sergey Kislyak. As part of his continued reaction to the development, Trump tweeted on Saturday that he "had to fire General Flynn because he lied to the Vice President and the FBI."
The tweet provoked a firestorm of reaction, particularly in light of former FBI director James Comey's assertion under oath that Trump asked him to drop the investigation into Flynn's conduct. If Trump knew Flynn lied to the FBI at the time he made this request of Comey, that would clearly constitute obstruction of justice, critics said.
But soon after the tweet was sent on Saturday, Dowd claimed that he—not the president—authored the tweet, and denounced as "ignorant and arrogant" any suggestion that the tweet amounts to an admission of obstruction of justice. (Many seriously questioned Dowd's insistence that he wrote the tweet, and argued that he should be disbarred if he did.)
Shortly after Dowd's Axios interview was published, several attorneys spoke out in disagreement with the assertion that the president cannot obstruct justice.
Conceding that charging the president with obstruction is "a difficult thing," former U.S. attorney Preet Bharara—who was fired by Trump in March—concluded in an interview with NBC that "the mere fact that the president is the president doesn't immunize him from an accusation of obstruction."
Norm Eisen, chair of Citizens for Ethics and Responsibility in Washington and former White House ethics lawyer, agreed with Bharara, arguing on Twitter that "Dowd is serving baloney for breakfast" and that "courts regularly consider otherwise lawful conduct by government officials to be obstruction if undertaken with corrupt intent."
Dowd is serving baloney 4breakfast. Courts REGULARLY regularly consider otherwise lawful conduct BY GOVERNMENT OFFICIALS to be obstruction if undertaken with corrupt intent--MANY examples (see e.g. page 76-77): https://t.co/v0lDIfNJMd https://t.co/H9RwpJzRO4— Norm Eisen (@NormEisen) December 4, 2017