President Trump was active, even by his standards, on Twitter last weekend, and the most noteworthy of his posts was this one:
“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!”
As critics quickly pointed out, the timeline the post posits would mean Trump already knew former National Security Adviser Michael Flynn had lied to the FBI at the time of Flynn’s firing on Feb. 13. If that’s so, he also knew about it on Feb. 14, when he allegedly asked then-FBI Director James Comey to drop the federal investigation into those very lies. And that, in turn, suggests Trump’s actions could be construed as obstruction of justice, for it would mean the president put his considerable political weight toward stopping an investigation into a crime he knew had been committed.
As uproar over the tweet grew, Trump’s personal lawyer, John Dowd, stepped up to claim the tweet was actually his doing. Whether he’s merely covering for his client, I don’t know, but to me, it seems the truth of the tweet is far more salient than its authorship.
That wasn’t all Dowd had to say. In an interview published at Axios on Monday, Dowd argued that what the president knew and when he knew it doesn’t matter anyway because the president by definition can’t be guilty of obstruction of justice. From Axios: “John Dowd, President Trump’s outside lawyer, outlined to me a new and highly controversial defense/theory in the Russia probe: A president cannot be guilty of obstruction of justice. 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.”
This is bizarre. It’s also evidence of a deeply troubling vision for an (even more) imperial presidency.
I don’t have the legal expertise to say whether Trump should be formally charged with obstruction, assuming the facts of the tweet are correct. I do feel entirely comfortable saying that state executives who cannot be guilty of obstruction of justice aren’t so much presidents as kings.
Dowd is right that the president can “express his view of any case,” though, as I’ve noted in regards to Trump’s comments about the media and the NFL protests, the president commenting on something in his capacity as the foremost representative of the federal government is simply not the same as a private citizen like you or I offering the exact same opinion in the exact same circumstances.
Dowd is wrong, however, that the president “cannot obstruct justice because he is the chief law enforcement officer” under the Constitution. That’s absurd. Of course law enforcement officers, at any level, can obstruct justice. They are uniquely positioned to do so, should they so choose. That’s why we ought to be uniquely vigilant to ensure they don’t make that choice.
The fact that the president is the country’s chief law enforcement officer is all the more reason to keep him accountable and watch his every move for abuses of power, including — and certainly not limited to — obstruction of justice.
Only the president’s personal lawyer would think otherwise.
Bonnie Kristian is a columnist at Rare, weekend editor at The Week, and a fellow at Defense Priorities.