Does Mueller's probe infringe upon Trump's constitutional authority?

Senior Editor
Yahoo News
Photo illustration: Yahoo News; photos: Carolyn Kaster/AP, Joseph Sohm/Visions of America/Corbis/Getty Images, AP
Photo illustration: Yahoo News; photos: Carolyn Kaster/AP, Joseph Sohm/Visions of America/Corbis/Getty Images, AP

President Trump on Wednesday tweeted comments from former U.S. attorney Joe diGenova, who argues that special counsel Robert Mueller’s probe into the firings of former FBI Director James Comey and national security adviser Michael Flynn is “an intrusion” on the president’s constitutional power.

“To ask questions, as Mr. Mueller apparently proposes to do, about what the president was thinking when he fired Comey, or Flynn, or anybody else, is an outrageous, sophomoric, juvenile intrusion into the president’s unfettered power to fire anyone in the executive branch,” diGenova said in a SiriusXM radio interview on Tuesday night. The interview was later featured on Sean Hannity’s Fox News show and quoted by Trump in a tweet Wednesday morning.


But other legal experts say that Trump’s constitutional right to fire people in the executive branch does not put the president above the law.

“That argument is confused. Although the president might have certain powers that are his alone, like firing executive branch employees or issuing pardons, it does not follow that he cannot commit criminal offenses in connection with those powers,” Alex Whiting, a former federal prosecutor at the Department of Justice and a professor at Harvard Law School, told Yahoo News. “If he took a bribe to fire someone or issue a pardon, that would be a criminal offense.”

“Similarly, firing an employee with the purpose of blocking or disrupting an investigation could constitute obstruction of justice,” Whiting added.

“We now have a nation of laws, not men,” Asha Rangappa, a former FBI agent and a senior lecturer at Yale University, told Vox in December. “While the president is the head of the executive branch, there are provisions in the Constitution that constrain the president’s ability to interfere with investigations or shut them down — or start them — at will.”

“While Article II instructs the president to ‘take care that the laws be faithfully executed,’ that does not give him carte blanche to wield his law enforcement powers any way he chooses,” Daniel Hemel, an assistant professor at the University of Chicago Law School, wrote on the Just Security website late last year.

That’s because obstruction of justice cases hinge on the intentions of the person suspected of obstructing it.

“Obstruction of justice is a specific intent offense,” noted Benjamin Wittes, editor in chief of the Lawfare blog and a senior fellow at the Brookings Institution. “The same acts can be crimes or not depending purely on the state of mind of the person engaging in them. The words, ‘That’s a nice house. It would be a shame if something happens to it,’ are not a crime when spoken by an insurance salesman trying to sell a homeowner’s insurance policy. They are prototypical witness tampering when said by a mobster in an attempt to intimidate someone who is slated to testify against a mob boss.”

Of course, not everyone agrees with Wittes.

“The president cannot obstruct justice when he exercises his lawful authority that is vested by Article II of the Constitution,” Josh Blackman, an associate professor at the South Texas College of Law in Houston, wrote on the Lawfare blog. “As a constitutional matter, the Justice Department does not exist, but for the president. It’s true that Congress establishes the agency, creates its offices, appropriates funds, and confirms the president’s nominees. But there is one attribute of DOJ that Congress does not — and indeed cannot — delegate: the executive power.

Blackman’s post, published last December, was pegged to the assertion by John Dowd, then Trump’s lead counsel in the Russia case, that 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, who had been pushing for Trump to cooperate with Mueller’s investigation, announced on Wednesday he is stepping down from the president’s legal team. Emmet Flood, a lawyer who defended former President Bill Clinton during his impeachment trial, has been tapped to replace Dowd.

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