President Trump set off a new wave of mainstream media outrage over the weekend when he publicly admitted that he was aware that Flynn had lied to the FBI and Vice President when he made the decision to fire him. Not surprisingly, the Left has used the admission to once again suggest that Trump obstructed justice by firing Comey for simply pursuing charges against someone who Trump himself already knew to be guilty.
I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!— Donald J. Trump (@realDonaldTrump) December 2, 2017
Of course, we know from Comey's own testimony that he was fired by Trump for repeatedly refusing to announce publicly that the President was not under investigation, a courtesy that he provided Hillary numerous times during the campaign.
Be that as it may, comments from Trump's legal team this morning to Axios seem to imply that the White House may be preparing a preemptive defense for an obstruction of justice charge...
Why it matters: Trump's legal team is clearly setting the stage to say the president cannot be charged with any of the core crimes discussed in the Russia probe: collusion and obstruction. Presumably, you wouldn't preemptively make these arguments unless you felt there was a chance charges are coming.
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 claims.
Dowd: "The tweet did not admit obstruction. That is an ignorant and arrogant assertion."
...a defense which Harvard Law professor Alan Dershowitz has offered at least a hundred times over the past year with the latest coming this morning on Fox News.
"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. That's what Thomas Jefferson did, that's what Lincoln did, that's what Roosevelt did. We have precedents that clearly establish that."
Not surprisingly, other left-leaning lawyers (you know, because the application of law was always intended to be political) tend to disagree with Trump's legal team and the famed Harvard law professor.
One top D.C. lawyer told me that obstruction is usually an ancillary charge rather than a principal one, such as aquid pro quo between the Trump campaign and Russians.
But Dems will fight the Dowd theory. Bob Bauer, an NYU law professor and former White House counsel to President Obama, told me: "It is certainly possible for a president to obstruct justice. The case for immunity has its adherents, but they based their position largely on the consideration that a president subject to prosecution would be unable to perform the duties of the office, a result that they see as constitutionally intolerable."
Remember: The Articles of Impeachment against Nixon began by saying he "obstructed, and impeded the administration of justice."
Of course, if the FBI truly is concerned about people in positions of power admitting to obstructing justice via twitter then perhaps they should take a look at James Comey's latest tweets which could easily be interpreted as the former FBI director admitting some political bias and a personal vendetta against the current administration...
“But justice roll down like waters and righteousness like an ever-flowing stream” Amos 5:24 https://t.co/o89PSY1YBd— James Comey (@Comey) December 1, 2017