Trump could still be impeached even if he is not charged with obstruction of justice

Tuesday, 05 December 2017, 02:01:50 AM. Arguments that Trump can't be charged are 'baloney,' say some legal experts.

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Updated | Lawyers supporting President Donald Trump argued Monday that he cannot be charged with obstruction of justice. Yet legal experts say charging him is not necessary to bring articles of impeachment against the commander in chief.

The comments from Trump's lawyers followed a potentially incriminating Twitter message about former national security adviser Michael Flynn sent from Trump’s social media account on the weekend. The message implied the president might have known Flynn lied to the FBI.

On Sunday, Trump’s lawyer John Dowd took the blame for the tweet, which suggested Trump knew Flynn lied to the FBI before the president reportedly urged former FBI Director James Comey to stop investigating Flynn. Trump denies having asked Comey to stop that investigation.

Allegations of obstruction of justice also surrounded Trump's firing of Comey in May. Under the Constitution, Trump has the authority to fire the FBI director. However, shortly after firing Comey on May 9, Trump justified the move in an interview with NBC News, referring to the FBI's Russia probe. “I said to myself, I said, you know, this Russia thing with Trump and Russia is a made-up story,” he said.

12_04_Trump_Law President Donald Trump calls on a reporter for a question as he departs from the White House for a trip to Utah on December 4. Jonathan Ernst/Reuters

"You cannot charge a president with obstruction of justice for exercising his constitutional power to fire Comey and his constitutional authority to tell the Justice Department who to investigate and who not to investigate,” argued Harvard law professor Alan Dershowitz on Fox & Friends Monday.

"You need clearly illegal acts” to pin down a president with an obstruction of justice charge, Dershowitz said. “With Nixon, hush money paid, telling people to lie, destroying evidence. Even with Clinton they said that he tried to influence potential witnesses not to tell the truth. But there has never been a case in history where a president has been charged with obstruction of justice for merely exercising his constitutional authority.” 

Trump has reportedly urged as many as seven officials to help throw cold water on, or stop, the Russia investigations in Congress and the FBI, which are probing whether his campaign worked with the Kremlin to interfere in the 2016 election.

Related: Trump has now urged seven officials to help end the Russia probes

In a Monday interview with Axios, Dowd, Trump’s lawyer, argued that the “president cannot obstruct justice, because he is the chief law enforcement officer” of the U.S. “and has every right to express his view of any case.” 

Yet other lawyers say that these arguments are a bunch of “baloney” and that Trump can be impeached for obstruction of justice, as President Bill Clinton was.  

Nineteen years ago this month, “the House of Representatives impeached @BillClinton for, you guessed it, obstruction of justice,” wrote Steve Vladeck‏, a national security law professor at the University of Texas School of Law, on Twitter Monday in response to Dowd.

The first article of impeachment prepared against Richard Nixon stated that he “prevented, obstructed, and impeded the administration of justice.” Nixon resigned before he was formally impeached.

“Dowd is serving baloney 4breakfast,” wrote Norm Eisen, a former White House ethics attorney, in a tweet Monday. “Courts REGULARLY regularly consider otherwise lawful conduct BY GOVERNMENT OFFICIALS to be obstruction if undertaken with corrupt intent—MANY examples.”

Eisen, a fellow at the Brookings Institution who also chairs the board of the nonprofit Citizens for Responsibility and Ethics in Washington, wrote a paper in October with other attorneys that laid out the obstruction of justice case against Trump.  

“There is precedent for impeaching a president on grounds that he has obstructed justice, obstructed a congressional investigation, or been convicted of a crime,” the report states. “Nevertheless, the subject of impeachment on obstruction grounds remains premature pending the outcome of the special counsel’s investigation.”

Special counsel Robert Mueller—who is probing whether Trump obstructed justice as part of his larger Russia investigation into whether the Trump campaign assisted Russian interference in the election—could hold off on bringing obstruction charges against Trump, according to the report.

Mueller could “explain that he has chosen to decline prosecution because he thinks that the matter should be referred to Congress for impeachment,” along with other charges, it said.

Impeachment is a political act that starts in the House Judiciary Committee, and articles of impeachment must be voted on by the House before being handed to the Senate Judiciary Committee. A trial takes place in the Senate.

The Senate Judiciary Committee’s top Democrat, Dianne Feinstein, said Sunday that she believes an obstruction of justice case is coming together.

“The [Senate] Judiciary Committee has an investigation going as well, and it involves obstruction of justice, and I think what we're beginning to see is the putting together of a case of obstruction of justice,” Feinstein told NBC host Chuck Todd on Meet the Press Sunday.

“I see it most importantly in what happened with the firing of Director [James] Comey, and it is my belief that that is directly because he did not agree to ‘lift the cloud’ of the Russia investigation,” Feinstein said. “That’s obstruction of justice.”

An earlier version of this story said Richard Nixon and Bill Clinton were both impeached for obstruction of justice. Only Clinton was; Nixon resigned before he could be impeached in the House of Representatives. Also, the spelling of Senator Dianne Feinstein's name has been corrected.

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