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"Presidents can not obstruct justice" claim by Trump lawyers may not hold up

06 December 2017

At the beginning of Mueller's investigation, Trump's legal team had an academic discussion over whether a president could obstruct justice by firing the FBI director, said a person familiar with the conversations.

Feinstein said the most important instance was Trump's firing of FBI Director James Comey, which she believes was "directly because he did not agree to "lift the cloud" of the Russian Federation investigation" as he said Trump requested.

This is a power which might take any such orders - direct, indirect, or even those by implication or suggestion - outside the purview of the criminal obstruction of justice law, says Banzhaf, who played a role involving special prosecutors to investigate two different presidents.

Article II of the Constitution is getting some attention as a lawyer for Donald Trump and a Harvard law professor argue that the article makes it impossible for the president to be charged with obstruction of justice. Flynn has agreed to cooperate with the investigation being led by Special Counsel Robert Mueller into potential collusion between the Russian government and Trump campaign during the 2016 election.

Over the weekend a tweet from President Trump's official Twitter account seemed to say that the president was aware that Michael Flynn had lied to the F.B.I. and that's why he had to be fired.

This comes on the heels of former National Security Advisor Mike Flynn pleading guilty last Friday to lying to Federal authorities earlier this year.

While there is precedent that deliberate interference with a criminal investigation or prosecution can constitute "obstruction of justice" for the purposes of impeachment, it is far from clear that such action, if undertaken by the President, would violate any federal obstruction statute. Impeachment may in fact be the best and most appropriate remedy if obstruction of justice is found.

"It's harmful to him", Georgetown University law professor Michael Seidman said.

"No president is above the law", he said.

To bring such charges, there must be evidence of "clearly illegal acts", Dershowitz continued. Most of the cases charged under the law are against people who tried to hide evidence or pressure witnesses in court cases. In 1998, the House of Representatives impeached Clinton on charges of perjury and obstruction of justice related to a sexual harassment lawsuit. "But you can be charged with obstruction of justice if you go beyond that and commit other crimes".

He argued that the president has full constitutional authority to fire the FBI director, as well as to direct investigations at the Justice Department. Lawmakers cited obstruction in impeachment proceedings against presidents Richard Nixon and Bill Clinton. Dowd had declined to comment when reached by the AP on Saturday night.

In this case, Dowd said Trump "had every right to express his "hopes" for Flynn".