The brazen assertion Monday by one of President Trump’s lawyers that a president cannot be found guilty of obstruction of justice signaled a controversial defense strategy in the wide-ranging Russia probe, as Trump’s political advisers are increasingly concerned about the legal advice he is receiving.
But Trump's personal lawyer John Dowd sought to excuse the president's tweet in part by telling Axios and NBC News on Monday 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 declined to elaborate on his theory or explain the emerging legal strategy to The Washington Post.
Inside the White House, some senior officials were baffled that Dowd publicly offered this interpretation of the law, which has been advanced since the summer by constitutional scholar Alan Dershowitz in defense of Trump but flatly dismissed by many other legal scholars.
Ty Cobb, a White House lawyer overseeing its handling of the Russia investigation, said Monday that the Dershowitz-Dowd theory was not the president’s official legal strategy.
“It’s interesting as a technical legal issue, but the president’s lawyers intend to present a fact-based defense, not a mere legal defense,” Cobb said in an interview with The Post. “That should resolve things, but we all shall see.”
Asked whether Trump agrees that a president cannot obstruct justice, Cobb replied, “I never talk about what the president’s beliefs are or discuss communications between the president and his lawyers.”
Many Washington lawyers and legal scholars disputed Dowd’s interpretation, citing several court cases and articles of impeachment — as well as, in the words of one expert, “common sense.”
“We have a president, not a king,” said Sam Berger, senior policy adviser at the Center for American Progress, a liberal think tank. “No one is above the law, whether it be Trump or any of his close associates. It’s the sort of desperate claim that makes you wonder, ‘What exactly are they hiding?’”
Berger argued that Dowd’s reasoning amounts to a “Hail Mary pass” for the president to escape responsibility. “This response, ‘If it’s the president, it’s not a crime,’ has never flown with the American people or our legal system in any context,” he said. “Claiming that the president can’t obstruct justice flies in the face of both common sense and past precedent.”
Some legal scholars, however, support Dowd’s claim. Dershowitz, a Harvard Law School professor, said Monday on Fox News Channel that Trump was within his rights when he fired Comey.
“You cannot charge a president with obstruction of justice for exercising his constitutional power to fire Comey and his constitutional authority to tell the Justice Department who to investigate, who not to investigate,” Dershowitz said. “That’s what Thomas Jefferson did, that’s what Lincoln did, that’s what Roosevelt did. We have precedents that clearly establish that.”
Dershowitz was appearing on “Fox & Friends,” a pro-Trump morning show that the president regularly watches. After his appearance, Trump tweeted, “A must watch: Legal Scholar Alan Dershowitz was just on @foxandfriends talking of what is going on with respect to the greatest Witch Hunt in U.S. political history.”
Dershowitz wrote a column in June for The Washington Examiner in which he argued that Trump's efforts to stop the FBI probe could not be considered obstruction because he was constitutionally empowered as president to direct the attorney general and the FBI director and tell them whom to prosecute.
Furthermore, he wrote, “the president has the constitutional authority to stop the investigation of any person by simply pardoning that person.”
Within Trump’s political orbit, concerns have grown in recent weeks about Trump’s legal strategy, crafted by Cobb and Dowd, as well as attorney Jay Sekulow, who at key moments has served as the public face of the defense team.
Cobb and Dowd have urged Trump to cooperate fully with Mueller’s investigation, providing documents when asked by the special counsel and encouraging White House staffers to comply with requests for interviews.
The two men have sought to assure White House advisers that Trump is not vulnerable to obstruction-of-justice charges. “They think everything is clean there,” said one senior administration official, who spoke on the condition of anonymity to be candid.
Cobb and Dowd also have been privately assuring the president that the Mueller probe was likely to reach its conclusion by the end of this year, complete with a public exoneration of Trump of any wrongdoing. That timeline seems overly optimistic to some legal experts, considering Mueller last week charged Flynn with lying to the FBI and secured his cooperation in the investigation.
In Monday’s interview, Cobb said he still believes Mueller’s investigation of Trump will reach “an appropriate result” by Christmas or early January.
But some Trump advisers and outside allies — including former White House chief strategist Stephen K. Bannon — have been grumbling for weeks that the president’s legal strategy is too compliant with Mueller and not combative enough.
One Republican strategist in frequent contact with senior White House officials said there had been “consternation” among Trump’s political advisers in recent days.
“The concern is that every time the president feels a little bit of pain from what Mueller’s doing, [his lawyers] give him OxyContin and tell him he’ll be fine by the morning,” this strategist said metaphorically, speaking on the condition of anonymity to discuss a sensitive matter. “Rather than being aggressive lawyers defending the president’s prerogative, they’re bending over backwards on the theory that Mueller is fair and it’ll all be over soon.”
These concerns grew over the past 48 hours as Dowd sought to explain the president’s tweet about firing Flynn in a succession of media interviews, which had some Trump loyalists grimacing.
Asked to respond to criticisms of the legal team, Cobb said, “There’s no question that Bannon is doing the president a great disservice by agitating persistently on this issue. Internally, where people are actually informed, there’s no consternation about the decision to cooperate fully with the special counsel, and Mr. Bannon has yet to identify what fights he would pick and how constructive that would be.”
Going forward, Cobb said, “I’m not going to litigate every isolated fact that people may testify about or may ask about in the press because that’s not fair to the process or to the special counsel or to the witnesses.”
The Brookings Institution in October published a 108-page study titled "Presidential Obstruction of Justice: The Case of Donald J. Trump." The authors reviewed the articles of impeachment against presidents Richard Nixon and Bill Clinton, and those drafted against judges Harry Claiborne in 1986 and Samuel Kent in 2009. They concluded that "obstruction, conspiracy, and conviction of a federal crime have previously been considered by Congress to be valid reasons to remove a duly elected president from office."
Co-author Norm Eisen, former special assistant for ethics and government reform in the Obama administration and a senior fellow in governance studies at Brookings, said, “There’s a long line of cases holding that when a government official exercises an otherwise legal authority with corrupt intent, they can be prosecuted for obstruction. It flows from the notion that no person is above the law.”
In 1999, Attorney General Jeff Sessions, then a senator from Alabama, argued that Clinton should be removed from office for obstructing justice in the investigation into his relationship with White House intern Monica Lewinsky.
“The facts are disturbing and compelling on the president’s intent to obstruct justice,” Sessions said at the time.
Josh Dawsey contributed to this report.