John Dowd, President Trump’s lawyer, made the astounding statement that the “president cannot obstruct justice.” It’s a statement that is false, dangerous and reveals a great deal about the state of the investigation of special counsel Robert Mueller.
Dowd’s argument is that, as head of the executive branch, the president has the power to begin and end investigations and to hire or fire personnel at the Justice Department or FBI. There is no question that the president is the nation’s chief law enforcement officer.
But like anyone else in law enforcement, the president can’t use his power unlawfully. It would be unlawful for the president to order an investigation based on someone’s race or religion. It would also be unlawful for the president to end an investigation in exchange for a bribe.
Similarly, it would be unlawful for the president to fire FBI leadership in order to help himself or his friends. If he did so, he would be acting with “corrupt intent” and would have obstructed justice.
The stakes are enormous. If the president could fire anyone in law enforcement who investigated him or his friends, without penalty, he would be above the law. It’s hard to believe that the president’s legal team thinks a court would hold that the president could fire anyone who investigated him, for any reason, without violating the law. This argument is meant to convince the public and Congress, because if the president obstructed justice, the case might end up in Congress via impeachment.
Dowd’s argument tells us that the Trump legal team is concerned that the president obstructed justice. Dowd wouldn’t be making this argument otherwise. The obstruction case against the president got stronger this weekend after his account made this tweet:
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!— Donald J. Trump (@realDonaldTrump) December 2, 2017
In this tweet, it appears that the president acknowledged that he knew Michael Flynn lied to the FBI prior to his meeting with then-FBI Director James Comey, during which Comey claims Trump asked him to end the investigation into Flynn.
Lying to the FBI is a federal offense — a serious felony — and Flynn pleaded guilty to that offense on Friday. If Trump knew Flynn committed a serious crime, told the FBI director to drop the case anyway, then fired him when he wouldn’t drop the case, that is powerful evidence of obstruction of justice.
That’s why Dowd now claims that he wrote that tweet, which is difficult to believe. Lawyers typically make statements in their name, not their client’s name, so the statements can’t be used against the client. He wants us to believe that he wrote a tweet with inaccurate information without checking with his client, and put it in his client’s name without his client’s approval. That just isn’t credible.
If Dowd continues to claim that he wrote that tweet, he should no longer represent the president because Trump will need him as a witness when Mueller tries to use that tweet against him.
In the meantime, there is reason for grave concern, given Dowd’s recent argument that the president can never obstruct justice. After the president’s recent tweets attacking the integrity of the FBI, he could be planning to fire Mueller himself, which could itself be seen as an additional act of obstruction. We should all hope that Dowd’s argument does not embolden the president to do so.
Renato Mariotti is a former federal prosecutor in the Securities and Commodities Fraud Section of the United States Attorney's Office in Chicago and he has prosecuted federal obstruction of justice cases. Mariotti is a candidate for Illinois attorney general. Follow him on Twitter @renato_mariotti.