It’s happening: President Donald Trump’s lawyer John Dowd asserted Monday that the “president cannot obstruct justice because he is the chief law enforcement officer under” Article II of the Constitution and “has every right to express his view of any case.”
This radical view of what lawyers call the “unitary executive” isn’t completely crazy, especially if you take Dowd’s words charitably.
But it is wrong. The president can indeed express opinions about legal cases. Yet he isn’t above the law that defines obstruction as an attempt to block the course of justice with corrupt intent. If he tries to pervert the judicial system to advance corrupt interests, he’s violating federal law.
He would also be committing a high crime qualifying him for impeachment under the Constitution: The first impeachment charge against Richard Nixon was precisely for obstruction of justice for his conduct in the Watergate coverup. One of the articles of impeachment approved by the House against Bill Clinton was for obstruction of justice.
To see why Dowd’s view, though wrong, isn’t utterly bizarre, consider that the U.S., almost alone among developed constitutional democracies, puts prosecution in the executive branch instead of a formally independent prosecutorial entity. That’s because the Constitution creates three branches of government, and three only, thus requiring all federal government authority to fit into one of those boxes.
Other constitutional systems include the prosecutorial authority alongside the judiciary, so that prosecutors are meant to function as independent quasi-judges. In the U.S. system, from the start, the attorney general worked for the president and federal prosecutors answered to the attorney general.
That means the president is formally the prosecutor in chief. The independence prosecutors typically enjoy derives from powerful traditional norms or from regulations that limit the president’s ability to fire — like the Department of Justice regulation that says only the attorney general can fire a special prosecutor like Robert Mueller, and only for good cause.
In theory, Congress could create truly independent prosecutors. In the 1988 case of Morrison v. Olson, the U.S. Supreme Court upheld the independent counsel statute that was later used to appoint Ken Starr and prosecute President Clinton. The only dissenter was Justice Antonin Scalia, who maintained that the prosecutorial function must belong to the executive under the Constitution.
Lots of scholars agree with Scalia and have criticized the Morrison case, but it’s still good law. It’s just that Congress let the law lapse after it expired in 1999.
All this is the necessary background to Dowd’s theory. His idea is that, because the president is the head federal prosecutor, and prosecutors are allowed to use discretion in whom they prosecute, any judgment by the president about how that prosecution should be exercised is within the president’s power — and can’t be obstruction of justice.
To the extent this view makes sense, it should cover any opinion sincerely expressed by the president for what he judges to be the good of the country — or for any non-corrupt whim. If, for example, Trump sincerely thought that former National Security Adviser Michael Flynn was a good guy who shouldn’t go to prison, it was perfectly legal for him to ask FBI Director James Comey to let the Flynn investigation go. Indeed, even firing Comey because he disagreed would be lawful and not obstruction of justice.
The trouble with Dowd’s view is that he seems to want it to apply to cases where the president had a corrupt intent. That would be, for example, if the president sought to hide his own criminal conduct. Or imagine a president who had a Mafioso friend and wanted to block his friend’s prosecution because the president owed him a favor. Those actions would squarely violate the statute.
Dowd’s view seems to be that even in those cases, the president couldn’t be charged with obstruction of justice, because Congress lacks the authority to tell the president when and how to exercise his prosecutorial discretion. Nothing the president ever did in the exercise of that discretion could be made unlawful, unless it violated the Constitution itself.
This cannot be right. The president has many powers that come with inherent discretion, and Congress may regulate his exercise of most of them. Congress can make it a crime for the president to take a bribe to exercise his discretionary powers. It can make it a crime for the president to use his discretionary power as commander in chief to order U.S. forces to murder his enemies.
What these examples have in common with the crime of obstruction is that Congress is prohibiting the president’s corrupt exercise of discretionary power.
And even if all this analysis were wrong, and Congress did lack the power to criminalize presidential corruption, it would still be within Congress’s power to impeach the president for obstruction of justice or other corrupt acts. That’s because Congress is the sole judge of impeachments, and high crimes and misdemeanors don’t have to be actual statutory crimes — they can be corrupt acts connected to the office of the presidency that Congress deems to subvert democracy and the rule of law.
In other words, even if he were right about federal law, which he isn’t, Dowd would still be wrong when it came to impeachment. And that’s the forum where Trump’s alleged misconduct will have to be judged first.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”