Analysts Doubt Idea That Trump Can’t Obstruct Justice

President Trump’s lawyers told special counsel Robert Mueller that a president legally can’t be charged with obstruction of justice. Former acting solicitor general Neal Katyal called that theory a “ludicrous” one that “died with King George III.”

An assertion by President Trump’s lawyers that he cannot obstruct justice because he has absolute authority over all federal investigations is legally problematic, analysts tell the Washington Post, because it would mean he is above the law. Many questions remain about how Trump’s office could protect him from the special counsel investigation examining whether his campaign coordinated with Russia to interfere with the 2016 presidential election. “The fact is, everything that we’re seeing, there is no precedent for,” said lawyer Jacob Frenkel, who worked in the independent counsel’s office in the 1990s. In a letter to the special counsel, Trump’s attorneys asserted that “the President’s actions … by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself.” They also asserted that “he could, if he wished, terminate the inquiry, or even exercise his power to pardon…”

Legal analysts said that Trump could issue pardons, fire senior officials or order them to shut down investigations. If his motives were corrupt, that could constitute obstruction. The principle in the letter is “a ludicrous legal theory,” said Neal Katyal, a former acting solicitor general. “The idea that a president can’t obstruct justice died with King George III, with a brief attempt at revival by Richard Nixon.” The letter from lawyers John Dowd and Jay Sekulow was part of a bid to keep Trump from being interviewed by special counsel Robert Mueller. “This memo is a polite way of taking 20 pages to say, ‘He’s not coming in without a subpoena, and even then, you’re in for a protracted fight,’ ” Frenkel said. Trump attorney Rudy Giuliani said Sunday that while Trump “probably” had the power to pardon himself, he had no intention of doing so. Trump himself said on Monday that he has an “absolute right to pardon myself,” adding “but why would I do that when I have done nothing wrong?”