Opinion writer

The Post reports:

Federal prosecutors accused former Trump presidential campaign chairman Paul Manafort of witness tampering late Monday in his criminal case and asked a federal judge to consider revoking or revising his release.

Prosecutors accused Manafort and a longtime associate they linked to Russian intelligence of repeatedly contacting two members of a public relations firm and asking them to falsely testify about secret lobbying they did at Manafort’s behest. …

In court documents, prosecutors with special counsel Robert S. Mueller III allege that Manafort and his associate — referred to only as Person A — tried to contact the two witnesses by phone and through encrypted messaging apps. …

FBI agent Brock W. Domin said that one of the public relations firm’s executives identified as Person D1 told the government he “understood Manafort’s outreach to be an effort to ‘suborn perjury’ ” by encouraging others to lie to federal investigators by concealing the firm’s work in the United States.

Let’s pause to consider how reckless, how downright dimwitted, it is to attempt to suborn perjury — electronically — while out on bail. Even the densest criminal would suspect that his communications were being monitored — in a case involving bank and tax fraud, money laundering and more. Manafort allegedly took action that would not only be a serious felony to add to the long list of charges but also would present powerful evidence of a guilty mind in the other crimes for which he has been indicted.

One might also conclude that someone confident of receiving a pardon would not behave in such a manner; he’d just sit back to wait for the missive from the president.
Needless to say, innocent people don’t ordinarily resort to falsifying evidence to prove their innocence. Come to think of it, neither do they draft exculpatory statements falsely explaining a meeting before the election with a Kremlin-linked lawyer and their son, son-in-law and campaign chairman. And yet, multiple denials that the president had anything to do with such a statement (explaining the purpose of the June 2016 Trump Tower meeting) are now inoperative, we learn. The official story is that Trump did draft the untrue statement — during an FBI investigation, an investigation into Russian collusion. Manafort is not alone in his recklessness, it seems.

Thanks to Manafort and to the president’s assertion that he cannot obstruct justice (and to boot can pardon himself), we now have public attention focused on the crime of obstruction of justice, which is serious for any private individual and a fatal breach of the president’s oath to “take care” that the laws are faithfully executed. Even Republicans are fessing up that obstruction is a really big deal, whether a president can be prosecuted in office (or after office) or “merely” impeached.

If Mueller does have credible proof of obstruction, how would Sen. Pat Toomey (R-Pa.) wriggle out of voting to convict after telling us: “I will tell you my own view is it is entirely possible for a president to obstruct justice. If a president committed perjury to lie to or mislead investigators, if he encouraged others [to], if he destroyed evidence.” Uh-oh.

Likewise, how would Sen. Richard Shelby (R-Ala.), who voted to remove President Bill Clinton on obstruction of justice, get around voting to convict Trump, if the facts were sufficient? Indeed, a whole bunch of Republicans currently in the Senate voted to remove Clinton on obstruction grounds — Majority Leader Mitch McConnell (Ky.) and Sens. Mike Crapo (Idaho), Chuck Grassley (Iowa), Pat Roberts (Kan.), Jim Inhofe (Okla.) and Mike Enzi (Wyo.). (Sens. Thad Cochran of Mississippi and Orrin Hatch of Utah, who will be retiring after this year, also voted for impeachment.) Oh, and Sen. Lindsey Graham (S.C.) was a House floor manager for the impeachment vote.

Trump is arguing that a president can do no wrong, but that has never been the position of any court or of the Justice Department. Remember that the Justice Department’s Office of Legal Counsel’s opinions (in 1973 and in 2000) never questioned that a president could be prosecuted, let alone escape impeachment. “Recognizing an immunity from prosecution for a sitting President would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment,” the OLC wrote in 2000. “The relevant question, therefore, is the nature and strength of any governmental interests in immediate prosecution and punishment.”

Moreover, there is a powerful argument that the Constitution never envisioned immunity for the president. Norman Eisen and Elizabeth Holtzman write:

There is no explicit declaration in the text of our Constitution that provides immunity to the president while in office for crimes that he or she commits. In addition, while the text of the Constitution is silent on presidential immunity, it is explicit on congressional immunity. No member of Congress may be prosecuted for what is said during speech and debate.

Plainly, the Framers knew how to provide for immunity when they wanted to — so their failure to do so for the president strongly implies that they didn’t believe it was appropriate in that case.

Put differently, Trump will need a better argument than he cannot obstruct justice by exercising his Article II powers. Not only is it clear he can be impeached for such conduct (and prosecuted after he leaves office), but some of the most damning evidence (e.g. drafting an inaccurate account of the Trump Tower meeting) cannot even be considered to be an exercise of his Article II powers (as would firing an FBI director). Come to think of it, pestering his attorney general to reverse a recusal wouldn’t be an exercise of Article II powers (unlike hiring or firing him), nor would making up a deliberate lie to smear law enforcement or coming up with a phony cover story to explain the firing of the FBI director. Come to think of it, Trump’s defense to prosecution or to impeachment for obstruction is no defense at all. The danger of allowing obstruction to go unchecked is underscored by none other than Manafort. Without strict enforcement of laws against obstruction, witness tampering, etc., the criminal-justice system becomes a circus.

Trump badly misplayed this in another respect. If he plans on battling in court over a subpoena, you can bet that judges will be reluctant to give even a smidgen of credence to his delusions that he is above the law. Trump revealed where he is headed with these arguments — to criminality without consequences. The federal courts have every reason to stop an executive power grab that would deprive the judiciary of any power over the president or ex-president. Trump therefore managed to rouse Republicans and, more important, the courts, where his effort to evade testifying might eventually be heard.