Donald J. Trump is channeling the spirit of Richard M. Nixon, who told David Frost in an April 1977 interview that “If the President does it, that means it’s not illegal.”
Or perhaps Trump is going back to the original source and is channeling the spirit of Louis XIV of France, an adherent of the concept of the divine right of kings, which advocates the divine origin of monarchical rule, who believed in the theory of absolute monarchy and consciously fostered the myth of himself as the Sun King, the source of light for all of his people. During Louis XIV’s reign, his main goal was “One king, one law, one faith.” “I am the State.”
President Trump’s bumbling lawyer John Dowd gave this exclusive interview to Mike Allen of Axios.com. Exclusive: Trump lawyer claims the “President cannot obstruct justice”:
John Dowd, President Trump’s outside lawyer, outlined to me a new and highly controversial defense/theory in the Russia probe: A president cannot be guilty of obstruction of justice.
The “President 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 claims.
Dowd says he drafted this weekend’s Trump tweet that many thought strengthened the case for obstruction: The tweet suggested Trump knew Flynn had lied to the FBI when he was fired, raising new questions about the later firing of FBI Director James Comey.
Dowd: “The tweet did not admit obstruction. That is an ignorant and arrogant assertion.”
Why it matters: Trump’s legal team is clearly setting the stage to say the president cannot be charged with any of the core crimes discussed in the Russia probe: collusion and obstruction. Presumably, you wouldn’t preemptively make these arguments unless you felt there was a chance charges are coming.
Americans rejected the divine right of kings and absolute monarchy when we told George III of England to “go stuff it up your ass” with the American Revolution. The source of power is “WE the people” in a democratic republic. Article II, Section 3 of the Constitution requires the President to “take Care that the Laws be faithfully executed.” And if he fails to do so, Article 1, Section 2, Clause 5, provides for the impeachment of the president. The hallmark of American jurisprudence is that “No man is above the law.”
The first article of impeachment against both Richard M. Nixon and Bill Clinton were for obstruction of justice. The articles of impeachment against Andrew Johnson alleged high crimes and misdemeanors that today might be construed as obstruction of justice.
Let’s break down the latest scandal from the “Trump Show.” Andrew Prokop at Vox.com writes, The tweet in which Trump maybe admitted to obstruction of justice, explained:
Did President Donald Trump accidentally admit to obstruction of justice over the weekend?
All through Friday, the president hadn’t yet tweeted about the news that his former National Security Adviser Michael Flynn had agreed to a plea deal in the Russia investigation.
By midday Saturday, though, Trump could maintain his silence no longer:
At first glance, this tweet might seem to be just another typically boisterous Trump denial of wrongdoing. But many soon observed that it could be deeply problematic for the president’s legal defense.
The issue here is Trump’s apparent admission that he fired Flynn in part because he “lied to” the FBI — something Trump has not said in the past. Lying to the FBI is a crime, so if Trump knew Flynn had done that before firing him, that would suggest he knew Flynn committed a crime.
And if Trump knew Flynn committed a crime, his subsequent urgings to then-FBI Director James Comey to “let” the Flynn investigation “go” look even more like obstruction of justice than they already did.
So it’s not surprising that soon enough, Trump’s legal team tried to clean up the mess — by claiming both that Trump didn’t even write the tweet and that the wording in it wasn’t quite right.
But this attempted cleanup is only raising more questions about the murky circumstances behind Flynn’s actions during the transition, and his ultimate firing — and just what Donald Trump knew and when he knew it in each case.
Trump’s team is now claiming he didn’t personally write the tweet
Team Trump’s first attempt to explain away the errant tweet was a claim that Trump himself didn’t even write it.
Instead, officials leaked to the Washington Post that the tweet was drafted by John Dowd — the top lawyer representing Trump personally (rather than the White House) in the Russia investigation.
Dowd subsequently came forward and said the same. He said “that he drafted the tweet and then sent it to White House Social Media Director Dan Scavino to publish,” according to NBC News.
Note: The bumbling Dowd has made himself a fact witness in this dispute, and now has a conflict of interest with his client, the president, over a material fact. The Rules of Ethics may require him to step aside as Trump’s lawyer because he can be called as a fact witness and has a duty of candor to the court.
White House aide Kellyanne Conway made a similar claim on Fox News Monday morning. “I was with the president on Saturday all day, frankly, and I know that what he [Dowd] said is correct,” Conway said. “What he says is that he put it together and sent it to our director of social media.”
However, when NBC News asked Dowd for a copy of the draft tweet, Dowd then “said he dictated it orally” to Scavino. That doesn’t really seem to match the description that Dowd “sent” the draft tweet to Scavino … but it is a medium that would conveniently leave no record.
Dowd also hasn’t explained whether Trump himself saw the tweet before it was posted.
Trump’s team is also claiming the tweet’s language wasn’t quite right
Then there’s Part 2 of the cleanup, which involves the actual content of the tweet.
Basically, Dowd is trying to disavow the exact language of the tweet — the statement that Trump fired Flynn in part because he knew he “lied” to the FBI — by saying it wasn’t quite accurate.
However, Dowd claims that the DOJ in fact did not actually accuse Flynn of lying to the FBI at that time. Per NBC:
Dowd said that Trump’s other tweet saying Flynn was fired in part for lying to the FBI was a reference to a statement made by acting Attorney General Sally Yates when she came to the White House on Jan. 26. At that time, she told White House Counsel Don McGahn that Flynn had “given the agents the same story he gave the Vice President.”
“For some reason, the [Justice] Department didn’t want to make an accusation of lying,” Dowd said. “The agents thought Flynn was confused.”
McGahn then passed that information on to the president, Dowd said.
“All the president knew was that the department was not accusing him of lying,” Dowd said.
So according to Dowd, what Trump’s tweet should have said wasn’t that Trump knew Flynn “lied” to the FBI — but instead that he was told that Flynn gave an incorrect story to the FBI.
A report by CNN’s Kara Scannell Monday somewhat corroborates that — claiming that McGahn told Trump in late January that he believed Flynn had misled both the FBI and Pence, but that McGahn didn’t go so far as to specifically tell Trump that Flynn had “violated the law.”
However, Scannell’s source claims that McGahn also recommended that Trump fire Flynn. Yet Trump took no action against Flynn for at least two more weeks, and only was spurred to after an account of Sally Yates’s warning leaked to the press.
Andrew Prokop concludes:
And there’s the obstruction of justice problem
Furthermore, one thing that makes everything else here look so much more suspicious in retrospect is Trump’s infamous request that then-FBI Director James Comey ease off on investigating Flynn.
Again, it was the very morning after Trump fired Flynn that he cleared a room of advisers and asked to speak with Comey alone.
“I hope you can see your way clear to letting this go, to letting Flynn go,” Trump said, according to Comey’s later testimony and a memo he wrote at the time.
Comey said that he “understood the President to be requesting that we drop any investigation of Flynn in connection with false statements about his conversations with the Russian ambassador in December.”
This suggests that Trump was well aware Flynn was facing serious legal jeopardy — indeed, that he was so worried about it that he’d go straight to the head of the FBI to ask him to back off.
Which brings us back to this weekend’s tweet:
Trump’s outreach to Comey looked bad already, even if he just knew that Flynn was under investigation (which he clearly did). But Trump’s interference looks even worse if, as the tweet says, he knew not only that Flynn was under investigation but that he outright “lied to” the FBI. He wouldn’t be just trying to protect an ex-aide who he thinks did nothing wrong — he’d be trying to argue that a guilty man shouldn’t face justice.
So, count one for obstruction of justice. Check.
Count two for obstruction of justice may well arise from this: Trump Pressed Top Republicans to End Senate Russia Inquiry:
President Trump over the summer repeatedly urged senior Senate Republicans, including the chairman of the Senate Intelligence Committee, to end the panel’s investigation into Russia’s interference in the 2016 election, according to a half dozen lawmakers and aides. Mr. Trump’s requests were a highly unusual intervention from a president into a legislative inquiry involving his family and close aides.
Senator Richard Burr of North Carolina, the intelligence committee chairman, said in an interview this week that Mr. Trump told him that he was eager to see an investigation that has overshadowed much of the first year of his presidency come to an end.
“It was something along the lines of, ‘I hope you can conclude this as quickly as possible,’” Mr. Burr said. He said he replied to Mr. Trump that “when we have exhausted everybody we need to talk to, we will finish.”
In addition, according to lawmakers and aides, Mr. Trump told Senator Mitch McConnell of Kentucky, the Republican leader, and Senator Roy Blunt, Republican of Missouri and a member of the intelligence committee, to end the investigation swiftly.
Senator Dianne Feinstein, a California Democrat who is a former chairwoman of the intelligence committee, said in an interview this week that Mr. Trump’s requests were “inappropriate” and represented a breach of the separation of powers.
“It is pressure that should never be brought to bear by an official when the legislative branch is in the process of an investigation,” Ms. Feinstein said.
* * *
Mr. Trump’s requests of lawmakers to end the Senate investigation came during a period in the summer when the president was particularly consumed with Russia and openly raging at his own attorney general, Jeff Sessions, for recusing himself from any inquiries into Russian meddling in the election. Mr. Trump often vented to his own aides and even declared his innocence to virtual strangers he came across on his New Jersey golf course.
In this same period, the president complained frequently to Mr. McConnell about not doing enough to bring the investigation to an end, a Republican official close to the leader said.
Republicans (of course) played down Mr. Trump’s appeals, describing them as the actions of a political newcomer unfamiliar with what is appropriate presidential conduct.
Seriously? This man-child is ignorant of the law is your defense of Trump? Thomas Jefferson had a response to this Republican enabling:
Finally, this absurd notion by John Dowd that “President 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,” is not supported in law, and barely deserves a response to avoid lending it any credibility worthy of a rebuttal. See, Trump’s lawyer: the president can’t obstruct justice. 13 legal experts: yes, he can., and Trump’s lawyer says a president can’t technically obstruct justice. Experts say that’s fanciful.
Greg Sargent warns that with this novel defense, “Trump may go full authoritarian” and fire Special Counsel Robert Mueller to shut down the Russia investigation (count three for obstruction of justice). It’s time to ask every Republican this question about Trump and Mueller:
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 scrums with reporters, 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?
* * *
“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 me this morning. “The logical extension of all this is that Trump can try to remove Mueller and it would be entirely legitimate.”
* * *
In saying all these things, Trump is amplifying a narrative that his media allies have banged away at in recent weeks, one designed to goad Trump into going full authoritarian. 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. If Miller is correct, then Dowd’s new quote may telegraph an argument that might be used to justify this, and Trump’s vow to bring the FBI “back to greatness” can also be read as a hint at this possibility.
* * *
The bottom line: Trump’s legal and/or political exposure — and that of his top advisers — appears to have grown. And given Trump’s response, so too has the possibility that he will try to put a stop to the investigation. We don’t know whether Trump will go this route. But the point is that the groundwork for this course of action has been laid, should he choose it. Trump’s lawyers have said this isn’t being discussed. But Dowd should now be pressed to elaborate on his new quote in this context.
* * *
Multiple GOP lawmakers have said Mueller’s probe should be allowed to proceed. But that isn’t enough. We should all do our part to ensure that they are pressed on whether Trump will face actual consequences if he tries to prevent that from happening.
What say you Rep. Martha McSally? Your constituents want to know your answer to this question.