Rudy Giuliani just made a big two-word concession: “He can.”
That's what Giuliani said Friday morning when asked by CNN's Chris Cuomo about whether a president can obstruct justice. And it contradicts the case that President Trump's now-former lawyer John Dowd had made.
Dowd told Axios in December: “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.” And there is some legitimate debate on that point.
But apparently Giuliani disagrees. Trump's own lawyer said Friday that his client is not immune from charges of obstructing justice — which is clearly the most troubling part of special counsel Robert S. Mueller III's investigation for Trump personally. While Trump hasn't been directly linked to potential collusion with Russia, he has taken many actions as president that have caught Mueller's attention and could feasibly be seen as trying to influence the course of the investigation. So whether Trump can technically obstruct justice at all is a key point, and it's one Giuliani just conceded.
Here's the exchange:
GIULIANI: The president has complete discretion to fire anybody he wants.
CUOMO: What about corrupt intent?
GIULIANI: Doesn't apply.
CUOMO: Why not?
GIULIANI: There's no evidence of that.
CUOMO: You don't think a president can obstruct justice?
GIULIANI: He can. But I think in the case of firing a subordinate who's going to be replaced by somebody else on an acting basis immediately —
CUOMO: But it's why you fired them. Corrupt intent. It's part of the legal analysis.
GIULIANI: It doesn't matter if, in fact, it can't result in anything. The investigation continued. The investigation expanded.
It's not clear that exempting Trump from any potential obstruction charges by virtue of his position has been a constant part of the Trump team's legal strategy. While Dowd said Trump was immune from committing such a crime in December, it hasn't been a public fixture of the team's defense. Alan Dershowitz put forward a somewhat similar case at the time, saying a president couldn't be charged with obstruction for actions taken in the course of executing his constitutionally protected duties.
It's also important to note that Giuliani didn't appear to think firing people — such as FBI Director James B. Comey — would constitute obstruction. That's similar to the argument Dershowitz was making.
But Giuliani's comments do run counter to the increasingly confrontational approach the Trump legal team is taking. And they concede a legal debate of some legitimacy that could affect the ultimate result here. There are many other potential elements of the obstruction investigation besides firing Comey, and Giuliani has conceded one of them could feasibly be labeled “obstruction of justice.”
"It’s significant in its own right, as it may be giving up on the absolutist position that Dershowitz and Dowd have tried to float," said former Justice Department official Harry Litman. "But it’s also significant because the limitation he is quick to advance makes no sense. The fact that the person you fire will be replaced by somebody else immediately is meaningless.
"If you’re trying to fire someone to squelch an investigation and replace him with a toady, of course it can’t matter that there’s someone – i.e., the toady — ready to step in and in fact advance your corrupt intent."
Of course, this comes into play legally only if Mueller were to attempt to charge Trump with a crime, which seems unlikely. But it could also be a factor if Congress has to decide, based upon Mueller's evidence, whether Trump committed an offense worthy of impeachment and removal from office. That's a ways down the road, but Giuliani just acknowledged that something Trump did to influence the Russia investigation could technically be obstruction of justice.