In a cart before the horse scenario, Rep. Jerrold Nadler (D-NY), chairman of the House Judiciary Committee, stated with certainty that he believes President Donald Trump is guilty of obstruction of justice. Nadler declared this as his committee initiated an investigation to ostensibly determine whether or not the president obstructed justice.
Nadler’s panel sent out 81 document requests and subpoenas as part of an unprecedented partisan probe launched at a time it is widely believed that Special Counsel Robert Mueller is wrapping up his investigation and issuing a report.
Nadler, who has evidently come to a conclusion prior to his committee’s investigatory work, has also moved past the Mueller report, apparently amid concerns that it will contain no evidence of the supposed Russian collusion, which the Democrat Party and its allies in the left-leaning media have been obsessing over for more than two years.
Politico has cautioned those who are eagerly anticipating the special counsel’s report to “prepare for disappointment.”
Despite denials from certain members of the party, Nadler and his ilk are on an endless search for a rationale that they will be able to sell to the public so that impeachment of the president can be pursued and the 2016 election can be reversed.
“I think Congressman Nadler decided to impeach the president the day the president won the election,” House Minority Leader Kevin McCarthy (R-Calif.) said. “Show me where the president did anything to be impeached…Nadler is setting the framework now that the Democrats are not to believe the Mueller report.”
Nadler opined that the president is guilty of obstruction of justice, citing the “1,100 times he referred to the Mueller investigation as a ‘witch hunt.’” He additionally pointed to President Trump’s 2017 firing of then-FBI director James Comey.
“It’s very clear that the president obstructed justice,” Nadler stated.
Nadler’s determination prior to the investigation begs the question: Can a case be made against President Trump for obstruction of justice?
There are two serious impediments facing Nadler and other Democrats who are looking to impeach a sitting president using an obstruction of justice charge. The first impediment is the law and the second involves politics.
An analysis of the current facts results in a finding that there is no viable case for obstruction of justice. A sitting president who exercises legitimate constitutional power cannot be guilty of obstructing justice for merely acting on such power.
In this case, President Trump carried out tasks in which he is fully authorized to engage, using powers inherent to the office of the presidency and granted by the Constitution. These powers grant to the president the ability to hire and fire officials under his charge, including FBI Director Comey.
Even if the president had suggested a de-escalation of an investigation, as Comey alleged, this would not constitute obstruction, since the Chief Executive is, in fact, in charge of the executive branch of government.
Immediately after the president relieved Comey from his position, the former FBI director leaked copies of memos to the New York Times in which Comey had written that President Trump asked him to drop the investigation into then-National Security Advisor Michael Flynn.
The Comey firing was explicitly recommended via a memo from Deputy Attorney General Rosenstein to then-Attorney General Jeff Sessions, which stated, “Almost everyone agrees that the Director made serious mistakes; it is one of the few issues that unites people of diverse perspectives. The way the Director handled the conclusion of the email investigation was wrong. As a result, the FBI is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them. Having refused to admit his errors, the Director cannot be expected to implement the necessary corrective actions.”
Obstruction of justice additionally requires a showing that the party who is obstructing possessed corrupt intent to interfere with, or had attempted to interfere with, the proceeding or investigation.
This means that the intentional aim of the interference is for self-interest.
Decisions made by a president that have arguable benefits for the people that the president serves are difficult for prosecutors to characterize as having the requisite corrupt intent.
President Trump’s decisions were arguably made to benefit the nation that his executive branch serves.
With regard to the tweets, presidents have a First Amendment right to express opinions. Moreover, the chief executive must freely express points of view as the leader of the executive branch.
President Trump’s tweets are not orders to those subject to his authority. They are instead expressions of ideas, thoughts, beliefs, and proposals to the people.
If President Trump had desired to interfere with the Mueller probe, he could have ordered it to be defunded, minimized, or terminated. Instead he chose to express opinions using his Twitter account.
Prior to taking the office of attorney general, William Barr penned a memorandum indicating that a president should not be prosecuted over conduct that is less than clearly serious criminality.
Does this mean that a sitting president cannot commit obstruction of justice? Of course not.
However, to commit a prosecutable offense, the occupant of the oval office would have to do something outside the scope of his constitutional authority, such as bribing a witness, threatening a judge, or destroying evidence.
Politically speaking, obstruction of justice, if used as a hedge for the lack of evidence of collusion, will likely result in a public perception that a significant gap had occurred between the original purpose of the investigation and the endgame.