The Washington PostDemocracy Dies in Darkness

Trump’s lawyer says a president can’t technically obstruct justice. Experts say that’s fanciful.

President Trump listens as Senate Majority Leader Mitch McConnell (R-Ky.) speaks in the Rose Garden. (Jabin Botsford/The Washington Post)

It was a whirlwind weekend for President Trump's legal team, from Michael Flynn's guilty plea to Trump's problematic tweet to new reports that fill out the picture of a broadening Russia investigation. And it concluded Monday morning with Trump's personal lawyer making a bold claim: Regardless of all of it, John Dowd says, a president can't even technically obstruct justice.

Here's the money quote Dowd gave to Axios: 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.”

To be clear, this is a Trump lawyer effectively trying to knock down one of two major pillars of the Russia investigation — to exempt his client completely from being held liable for his actions in (roughly) half the investigation. That investigation began by looking at possible collusion between the Trump campaign and Russia and, thanks to Trump's own actions, has also come to key on Trump's possible obstruction of justice. Dowd argues the latter is a mythical crime even if it is proven that Trump intervened in the investigation to save himself or others.

This theory is clearly a hugely convenient one for the White House; that much is clear. But does it actually hold water, legally speaking?

With the term whirling around Washington, a former federal prosecutor explains what to know about the criminal charge of obstruction of justice. (Video: Jenny Starrs/The Washington Post)

Experts are dubious, but they are dubious to varying degrees. Constitutional experts Jonathan Turley of George Washington University and Daniel P. Franklin of Georgia State University both said Dowd's argument isn't completely without merit.

“The president's lawyer is overstating his case, but he has a point,” Franklin said. “The words of a president, not expressed under oath and not in the service of obstruction (for example, ordering subordinates to commit obstruction), are just words and not actions and, therefore, are not a crime.”

Franklin said he believes the argument that Trump obstructed justice by firing FBI Director James B. Comey is “thin” and said he doesn't believe Trump can obstruct justice when he is acting within his authority as chief executive. But, he said, the president can obstruct justice when not acting in that capacity.

“To the point that the president can't engage in obstruction because he is the chief executive,” Franklin said of Dowd's argument, “that is engaging in sophistry.”

Turley said he disagrees with Dowd but that it is a “perfectly reasonable argument.” He agrees that it's more difficult to prove obstruction when a president is acting as chief executive, but unlike Franklin, he said even those actions could theoretically be criminal.

Trump “has the power to fire an attorney general, but he can commit a crime if he does so to block an investigation into alleged crimes,” Turley said.

Meena Bose, an expert on executive authority for Hofstra University, noted that the ultimate arbiter would be Congress, which has the power to impeach and convict. And she noted that previous presidents who faced impeachment were confronted with obstruction charges — both explicit and implicit.

“The articles of impeachment against Nixon mention obstruction of justice. The articles against Clinton, who was impeached, did so as well,” Bose said. “The articles of impeachment against Andrew Johnson, who also was impeached, discussed alleged high crimes and misdemeanors that today might be construed as obstruction of justice.”

Others were blunter, arguing that Dowd's case is bogus and entirely self-serving. Michael Gerhardt of the University of North Carolina's School of Law called it “absurd.”

“The president is obliged to faithfully execute the law, and that includes in circumstances where he or his friends are involved,” Gerhardt said. “He must also comply like every citizen is obliged to follow the laws in everything else he does — ranging from filing his taxes properly to driving to avoiding sexual harassment in the workplace.”

Of course, no president has actually been removed from office via impeachment, so this is still a legal question that is unresolved. That means whatever the answer, Trump could be the one to answer it thanks to his own missteps.

“For years, professors have engaged in a type of professorial parlor game of unanswered questions ranging from the definition of 'emoluments' to prosecuting a president in office to charging a president with obstruction,” Turley said.

He added: “To its great peril, the Trump administration seems intent on answering each of these questions.”