Terry H. Schwadron
Dec. 6, 2017
There’s what is Legal, and there is what people wish to be Legal — the politics of what would have to happen for something to be declared legal.
We’ve seen it over and over during this first year of Donald Trump as president.
Travel bans written to target Muslims were legal until they were declared illegal by courts (or now allowed by the courts); rollback of environmental rules had been thought to be legal, but had to be confirmed by the courts; same-sex marriage is legal, unless enough people find minute cracks in the law to pursue in the courts, like the decision pending on whether it is legal for a baker to refuse service to two gay men because that baker has problems with same-sex laws.
The deepest among these kinds of questions is beginning to crest as a result of the guilty admission by former National Security Adviser Michael T. Flynn and the continuing investigation by Special Counsel Robert S. Mueller III.
Even as people frankly guess about what cards Mueller is holding in his probable poker showdown with the White House about all-things-Russia, the weekend presidential tweet that insisted that Trump had fired Flynn knowing that he had lied to both Vice President Mike Pence and to the FBI has primed the pump for the question. Why? Well, acknowledging that he knew of lying to the FBI before confronting FBI Director James B. Comey Jr. to go easy on Flynn amplifies and supports allegations of presidential obstruction of justice.
John Dowd, one of the president’s personal lawyers, says that it was he, not Trump, who had dictated the words of Trump’s pre-dawn tweet, on Sunday tried to explain that the language of the tweet was imprecise. Just how the lawyer would do that was never explained.
But importantly, Dowd argued that in any case, President Trump could never be found or even accused of obstructing justice, because as the nation’s chief law officer, the president has total freedom to act or speak about any issue before the Justice Department. In addition, he could have fired Comey at any time because he has complete authority over federal employment.
It is the key point in this whole messy problem.
Either you believe that all are equal before the law or not. Either you believe that no one, including the president, is above the law, or you don’t. You can argue about whether a president can be convicted in a federal court while still in office, or whether obstruction of justice allegations justify impeachment or other punishments, but you cannot argue that the president is exempt from law.
Otherwise, we have a dictator. Otherwise we have killed the Constitution. Otherwise we have ended democracy.
Under Dowd’s thinking, Trump can fire Mueller, can order all inquiries to stop as they approach those near him or himself, or can pardon all Trumpists preemptively. The question of impeachment eventually will come down to whether Senate Republicans want to stand up for the oath they took or not.
The first article of impeachment against Richard M. Nixon — which resulted in his resignation rather than an impeachment trial — was obstruction of justice, and obstruction was among the list of particulars against Bill Clinton in the consideration of impeachment.
A Washington Post column posed this: “In coming days and weeks, we should all do whatever we can to ensure that every Republican member of Congress, in town hall meetings, via social media and during media scrums, is asked the following question: If President Trump tries to remove special counsel Robert S. Mueller III, would you view that as an impeachable offense?”
Lawyer Dowd says the president “has every right to express his view of any case,” that it was okay to dismiss Comey, and therefore would seem to be okay to fire Mueller.
Other legal experts are disputing the idea that even if Trump has this authority, he cannot exercise it for a corrupt purpose. Regardless, this would not have to be a crime to constitute an impeachable offense. Others just dismiss the idea that Dowd had written or dictated the text as nonsense. Among other things, a lawyer would have said that Flynn had “pleaded” guilt, rather than “pled” as reflected in the actual text.
“Dowd is basically arguing that as the chief law enforcement officer, Trump has the authority to block investigations into himself, his allies and into his friends, and nothing he does can be construed as obstruction of justice,” Matthew Miller, a former Justice Department spokesman, told the Post. “The logical extension of all this is that Trump can try to remove Mueller and it would be entirely legitimate.”
Trump is picking up on the theme among his allies that looks an awful lot like a fully authoritarian government. As the Post column said, “The basic idea is that Mueller and the FBI are themselves corrupt — Clinton is not being investigated, but Trump’s campaign is — so the only way to set things right is to close down Mueller’s probe.”
Look, the real issue arising from Flynn’s plea seems the belief that Flynn was not acting along, that top advisers or Trump himself, was directing him to be in touch with Russians before Trump became president. Trump is in widening exposure to legal or impeachment-related problems. Even yesterday, the special counsel’s office demanded Trump family documents about personal finances. This cannot be good for Trump; it is not good for the country.
We can expect that like any cornered animal, Trump will flail at anyone who tries to pin him down. But someone has to remind him that presidents are not above the law.