One of the enduring principles of our democracy is that no man is above the law, including the President of the United States.
That was reinforced three times throughout our history during the presidencies of Andrew Johnson, Richard Nixon and Bill Clinton.
Johnson was impeached on purely political grounds arising from his actions during reconstruction.
Nixon was on the verge of impeachment for his role in the Watergate burglary and cover-up when he resigned.
Clinton was impeached for lying about his affair with an intern during a deposition in a civil lawsuit.
The experiences of Nixon and Clinton are particularly instructive and relevant to the current situation unfolding in the nation’s capital today.
The Special Prosecutor, Robert Mueller, is investigating Russian involvement in the 2016 Presidential race and related matters.
One of the matters involves Trump’s firing of his National Security Adviser, Michael Flynn, for ostensibly lying to the Vice-President about his contacts with Russian government officials during the transition period.
In the immediate aftermath of Flynn’s firing, Trump allegedly requested FBI Director, James Comey, to forego investigating and prosecuting Flynn.
When Comey demurred, Trump fired him too.
As a result of the firing, Rod Rosenstien, the Deputy Attorney-General appointed Robert Mueller as Special prosecutor.
Mueller has moved quickly, either indicting or obtaining guilty pleas from a number of Trump campaign officials, the most recent being Flynn.
Flynn was allowed to plead guilty to a single felony count of making false statements to the FBI and has entered a cooperation agreement with the Special Prosecutor that requires him to truthfully disclose all that he knows about any crimes or collusion on the part of those who were involved in the Trump campaign and may now be a part of the Administration.
This latest development led Trump’s lawyer, John Dowd, to offer the very curious opinion that Trump cannot obstruct justice because, as President, he is the chief law enforcement officer of the nation.
Dowd maintains that Trump is entitled to direct the Justice Department to initiate any prosecution he desires and discuss any prosecution or potential prosecution that may arise.
Dowd is joined in this position be Harvard law Professor, Alan Dershowitz, who has become a Fox News pundit and a legend in his own mind.
Other than Dowd, the only one who thinks this legal position has merit is Dershowitz, the remaining legal community believes that it doesn’t pass the laugh test.
To Trump and his defenders, this position is important for several reasons.
If Trump cannot be charged with obstruction of justice, then his exercise of the pardon power to absolve those who might be criminally responsible for what has occurred, cannot be a predicate to a charge of obstruction of justice.
No one would argue that the President doesn’t have the power to pardon law breakers, but the premature exercise of that power to thwart an ongoing criminal prosecution or investigation most certainly could support an obstruction of justice charge if, the pardon was issued to shield law breakers who might cooperate in the probe.
We need to look no further than the impeachment articles that were voted by the House of Representatives during the Nixon proceedings to see that there is precedent for charging a president with obstruction of justice.
Nixon chose not to test that theory and instead, resigned.
The other corollary position that Trump’s lawyers seek refuge in, is the belief that Trump cannot be criminally charged while he is in office, before being convicted in an impeachment trial in the Senate.
It’s fair to say that there is a division of opinion on this subject in the legal world.
There is nothing in the Constitution that explicitly shields a sitting president from criminal prosecution.
This concept is implicitly rooted in the fact that the Founding Fathers provided that a President may be removed from office if convicted in an impeachment trial of “high crimes and misdemeanors.”
It is generally well settled that these terms encompass offenses that may be criminal in nature as well as criminal.
Andrew Johnson’s articles of impeachment included no criminal offenses.
Nixon’s articles of impeachment, as noted, included obstruction of justice charges.
Clinton’s articles of impeachment also included obstruction of justice charges as well as perjury.
It has been reported that the Nixon Special Prosecutor, Leon Jaworski, had prepared legal briefs that supported the principle that Nixon could be charged criminally while in the White House.
It has also been reported that Robert Mueller has done the same.
In the legal case involving Clinton and Paula Jones, the U.S. Supreme Court ruled that Clinton was not shielded from civil litigation while he was President and that is what led to his lying under oath about the affair with Monica Lewinsky.
The Trump team, aware of that ruling, hastened to settle as many civil cases pending against him prior to the inauguration.
I am of the opinion, that if a president cannot be shielded from civil litigation while in the White House, there is an even more compelling reason not to shield him from criminal prosecution, including obstruction of justice, in whatever form it occurs.
If the Dowd opinion were to be validated, we would be in very dangerous waters.
Trump could pardon those who might be a danger to him at will.
He could meet with and strategize with any witness, subject or target of the probe, even if that amounted to suborning perjury.
He could fire the special prosecutor and terminate the investigation.
He could initiate criminal investigations and prosecutions of anyone he perceives as having wronged him.
He could make good on his favorite chant, “lock her up.”
It would amount to his becoming a government of one.