News and Commentary

Trump’s Lawyer: Here’s Why An Obstruction Case Against Trump Will Fail

In an interview with Axios, President Trump’s outside lawyer John Dowd dismissed the Democrats’ threats of “obstruction of justice” charges against the president. Dowd’s argument against the obstruction case was simple: A sitting president “cannot obstruct justice.” As for the Democrats’ claim that Trump’s tweet about Mike Flynn lying to the FBI was evidence of obstruction, Dowd slammed it as “an ignorant and arrogant assertion.”

“[The President of the United States] 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 told Axios in an interview published Monday.

Dowd has taken the blame for a tweet issued on Trump’s twitter account on Saturday that caused a stir on Capitol Hill and inspired Democratic Sen. Dianne Feinstein to tell “Meet the Press” on Sunday that the Senate Judiciary Committee is building an “obstruction of justice” case against the White House.

“I think what we’re beginning to see is the putting together of a case of obstruction of justice,” said Feinstein. “I think we see this in the indictments — the four indictments and pleas that have just taken place — in some of the comments that are being made. I see it in the hyper-frenetic attitude of the White House, the comments every day, the continual tweets, and I see it most importantly in what happened with the firing of [former FBI] Director Comey, and it is my belief that that is directly because he did not agree to lift the cloud of the Russia investigation. That’s obstruction of Justice.”

When pressed by host Chuck Todd if Trump himself was being investigated, she suggested that he was, saying, “I don’t believe that general Flynn was a rogue agent. … I think he had to have been directed.”

Feinstein was in part referencing a tweet from Trump on Saturday in which he seemed to say that he knew that Flynn had lied to the FBI when he fired him.

“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!” Trump tweeted Saturday. On Sunday, Trump insisted in another tweet that he “never asked Comey to stop investigating Flynn,” another key accusation leveled against him.

In an interview with Reuters on Sunday, Dowd said he was the one who wrote the Saturday tweet and that he made a “mistake” when composing it.

“The mistake was I should have put the lying to the FBI in a separate line referencing his plea,” said Dowd. “Instead, I put it together and it made all you guys go crazy. A tweet is a shorthand.” Reuters reports:

Dowd said the first time the president knew for a fact that Flynn lied to the FBI was when he was charged.

Dowd also clouded the issue by saying that then-Acting U.S. Attorney General Sally Yates informed White House counsel Don McGahn in January that Flynn told FBI agents the same thing he told Pence, and that McGahn reported his conversation with Yates to Trump. He said Yates did not characterize Flynn’s conduct as a legal violation.

Speaking with Axios, Dowd dismissed the argument that the tweet was an admission of guilt. “The tweet did not admit obstruction. That is an ignorant and arrogant assertion,” said Dowd.

Axios notes that Democrats will try to counter the idea that a sitting president cannot be charged with obstruction, citing former Obama White House counsel Bob Bauer, who maintains that 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,” said Bauer.

According to former Reagan staffer Mark Levin, the Department of Justice agrees with Dowd. “I happen to know as a matter of fact that the Department of Justice has another legal memorandum from my own experience which states that from the perspective of the Department of Justice, you can’t indict a sitting president,” explained Levin in July.

Levin, like many others, including Axios’ Mike Allen, believes that the only way that Democrats can really get to Trump is through impeachment. The special counsel’s role, according to those who believe Mueller is biased against Trump, is to provide the Democrats with the grounds for impeachment should they win the House of Representatives.