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Can Trump obstruct justice?

HERB BOYD | 12/7/2017, 4:42 p.m.
Now that Michael Flynn, Trump’s very brief national security adviser, has copped a plea and promised to cooperate with special ...
President Donald Trump CNN

Now that Michael Flynn, Trump’s very brief national security adviser, has copped a plea and promised to cooperate with special counsel Robert Mueller, we can only speculate on the extent of the plea, and what information Flynn is willing to dispense.

Flynn, having admitted he lied to the FBI about his meetings and conversation with the Russian ambassador, is in deep water, and to avoid total immersion he, in effect, is turning state evidence; what he discloses could be damaging to Trump.

And Trump, as ever, has complicated the affair with a tweet that he fired Flynn because he knew he had fibbed to the FBI. To snatch Trump from the possible snares of obstruction of justice, that is to say Trump admitting he knew Flynn was lying when he fired FBI head James Comey, one of Trump’s lawyers, John Dowd, said he was the author of the tweet.

Moreover, Dowd told the press that the president cannot obstruct justice “because he is the chief law enforcement officer” under the Constitution. A number of noted legal authorities impaneled by Politico weighed in on this issue, and depending on which authorities you choose to believe, Trump is free of such charges or what he’s done is very similar to what happened in the impeachment of Clinton.

Trump’s defense and that of his attorney will not work, said Kathleen Clark, an expert of legal ethics and professor at Washington University in St. Louis. “Dowd’s argument that President Trump cannot be held accountable for obstructing justice is reminiscent of one that former President Nixon made: ‘When the president does it, that means it is not illegal,’” she said. “That argument didn’t work for Nixon, and Dowd’s new formulation of it won’t work for Trump.”

Clark added, “While a president does have the power to fire an FBI director, he does not have the authority to do so if it would violate the law. Past presidents have been held accountable for obstruction of justice. The articles of impeachment against both presidents Nixon and Clinton cited their alleged obstruction of justice as justification for why they should be removed from office. Our Constitution gives the president the responsibility to ‘take care that the laws be faithfully executed.’ It does not give the president the authority to act in violation of the laws, including the laws on obstructing federal investigations.”

In effect, Trump is not the king and thereby must abide by the limitations of his presidency, and should he be indicted and tried, that would certainly make it difficult for him to run the government. Because he would be unable to run the government there would exist the possibility of enacting the 25th Amendment to remove him from office.

But this action cannot be taken without congressional approval, and with the GOP in charge that is unlikely to happen.