So, can the president obstruct justice — or can’t he?


Readers may be forgiven if they remain confused about whether a president of the United States can obstruct justice. As the Mueller investigation continues, we hear on the one hand that stopping an investigation into the president or his associates is obstruction. On the other, we hear that the president is a unitary executive who can constitutionally order an end to any investigation for whatever reason.

Yet few analyses have looked at the actual constitutional text. If we do so, it turns out that perhaps neither side is quite right.

{mosads}To begin with, the question whether a president can or does obstruct justice will likely be highly context dependent — Presidents Nixon, Bush 41, Clinton, and Bush 43 were all accused of obstruction under very different circumstances. The proper question before us is whether the president can obstruct justice by directing a law enforcement official to drop an investigation, or removing him from office to obtain the same result. If we look only to the federal obstruction statutes, which prohibit interfering with an investigation for a corrupt motive, it would seem that he can.

It’s not quite so simple, however, because a federal statute can’t trump the president’s constitutional power — and the president does have the power to remove executive officers. This stems from the “Decision of 1789,” when Congress debated whether the president could remove appointed officials at will or needed to obtain the same senatorial advice and consent necessary for the appointment in the first place.

A majority of Congress concluded that because the president had “the duty to take care that the laws be faithfully executed,” that duty must include the power to remove officials who may not be executing the law as the president believes they ought to be executed. And early presidents including George Washington exercised the executive power to direct federal prosecutors to drop suits — providing additional evidence for the “unitary executive” theory.

A federal statute therefore cannot supersede the president’s power to remove officials or direct them in the performance of their duties. But do the obstruction statutes supersede these constitutional powers? Not necessarily. The rationale for these powers may imply a limit, too. The rationale is based on the president’s duty to take care that the laws be faithfully executed. If the president removes officials in order to thwart a faithful execution of the laws, perhaps a power of removal no longer follows.

However, failing on a single occasion to ensure a proper execution of the laws seems insufficient to find that the president has violated his duty, which is of a more general nature. After all, presidents cannot be expected to have perfect judgment at all times. Nevertheless, exercising the removal power under the right conditions could plausibly give rise to impeachment, just as a suspension of the immigration laws, if a faithless execution of the law, could plausibly give rise to impeachment, too.

So can the president obstruct justice by removing officials or directing them to end an investigation? The answer is not as obvious as some commentators have made it out to be. The best constitutional answer seems to be that the president can remove (or direct) officers at any time, and it is then up to Congress to decide whether the removal is so inconsistent with the president’s general duty to take care that the laws be faithfully executed that it warrants his own removal from office.

Ilan Wurman is the author of “A Debt Against the Living: An Introduction to Originalism.” A nonresident fellow at the Stanford Constitutional Law Center, he writes primarily on administrative and constitutional law. You can follow him on Twitter @ilanwurman

The views expressed by contributors are their own and not the views of The Hill.


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