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Is Trump Immune from Obstruction of Justice Charges? It’s Complicated, Legal Observers Say

Donald Trump

By Steve Neavling
ticklethewire.com

Donald Trump’s personal lawyer brazenly declared the president “cannot obstruct justice” because he’s the “chief law enforcement officer.”

Citing the executive powers in the U.S. Constitution, Trump’s attorney John Dowd said the president “has every right to express his view of any case.”

Dowd didn’t elaborate, but his position drew comparisons to Richard Nixon’s infamous remarks in 1977: “When the president does it, that means that it is not illegal.”

Dowd’s position that Trump is legally incapable of obstructing justice  came two days after the president’s explosive admission that he knew his then-national security adviser Michael Flynn had lied to the FBI. It’s a felony to lie the FBI. 

Many legal experts believe Trump’s admission that he knew of the alleged crime bolsters special counsel Robert Mueller’s case that the president intended to quash a legitimate criminal investigation by urging then-FBI Director James Comey to drop the case against Flynn. When Comey refused, he told investigators that Trump fired him.

Trump fired Comey, leading to claims that the president obstructed justice, a felony punishable by prison time.

But can a president be criminally charged with obstruction of justice?

Legal scholars are deeply divided on the issue, but virtually all agree that Trump, if guilty, could be impeached by Congress on the obstruction of justice charges.

Just look at Nixon and former President Bill Clinton, both of whom were accused of obstruction of justice and were impeached, but never criminally charged.

“No one in the judiciary committees during the Clinton and Nixon cases ever claimed that the president is incapable of obstructing justice,” constitutional scholar Michael Gerhardt of the University of North Carolina School of Law told ABC.

Former President Nixon

Gerhardt insists the president isn’t above the law and said it’s “absurd” to claim that Trump couldn’t be criminally charged for obstruction of justice.

Blanket Immunity

Peter Zeidenberg, a lawyer who focuses on white collar and investigations, agrees, saying blanket immunity for a president would mean he could lie to prosecutors, destroy evidence and violate other laws.

“That assertion would literally mean that the president is above the law,” Zeidenberg told Politico.

Eugene Kontorovich, professor at Northwestern University School of Law, said it’s possible that a president’s action could constitute obstruction of justice, but added that the president may direct “inferior officers,” such as Comey, because Trump is the president of the supreme law.

“Offering advice on prosecutorial discretion cannot amount to obstruction,” Kontorovich told Politico. 

Noting the law is very unclear and has no precedent in a criminal proceeding, some legal experts said the authority to determine whether a president committed obstruction of justice belongs to the U.S. House of Representatives, which has impeachment powers.

For that reason, some legal scholars said the best way to handle obstruction of justice is through the impeachment process, not through the legal system.

“The task of determining whether Trump acted improperly ultimately falls to the House,” John Culhane, professor at Widener University Delaware Law School, told Politico.

But Harvard Law School professor emeritus Alan Dershowitz, who focuses on constitutional law, insisted Trump cannot commit obstruction of justice by “exercising his constitutional power” to terminate employees and control appointees.

“I think if Congress ever were to charge him with obstruction of justice for exercising his constitutional authority under Article II, we’d have a constitutional crisis,” Dershowitz told ABC News. “You cannot charge a president with obstruction of justice for exercising his constitutional power.” 

Others disagree, saying the president is required to follow the law like any American citizen.

“We have a president, not a king,” said Sam Berger, senior policy adviser at the Center for American Progress, a liberal think tank. “No one is above the law, whether it be Trump or any of his close associates. It’s the sort of desperate claim that makes you wonder, ‘What exactly are they hiding?’”

Ousted Member of Russia-Trump Probe May Have Saved Clinton from Charges

Hillary Clinton

By Steve Neavling
ticklethewire.com

In what could become a distracting setback to the credibility of the Trump-Russia investigation, the FBI agent who was removed from the special counsel probe for mocking the president altered the language used to describe Hilary Clinton’s actions in the email inquiry last year.

Peter Strzok’s change in the original writing, which was by then-FBI Director James Comey, was significant and may have helped Clinton avoid charges, legal observers told CNN

Strzok, a former top counterintelligence expert at the FBI, altered Comey’s earlier draft language, from “gross negligence” to “extremely careless.”

Several people were involved with the decision to change the language, a U.S. officials familiar with the matter said. The change in language carries significant legal implications because federal law makes it a crime to mishandle classified material in a grossly negligent way.

Other Stories of Interest

FBI Director Defends Agents Against Dubious Trump Attacks

Christopher Wray is sworn in as the new FBI director. Photo via FBI.

By Steve Neavling
ticklethewire.com

FBI Director Christopher Wray defended his bureau against repeated attacks from President Trump and sought to assure employees and agents that they’re appreciated and admired. 

Responding to the president’s unfunded and dubious claims on Twitter that the FBI’s standing was “the worst in History,” Wray sent an email to the bureau’s 35,000 agents and support staff and said he is “inspired by example after example of professionalism and dedication to justice demonstrated around the bureau. It is truly an honor to represent you,” The New York Times reports

Wray, whom Trump nominated to replace fired FBI Director James Comey, didn’t mention the president by name but showed his loyalty is to his employees, not the president. Wray has been on the job for about four months.

Trump has become more vociferous and conspiratorial as the special council investigation continues to heat up and get closer to his inner circle.

Wray encouraged his employees to ignore criticism and continue to focus on enforcing the law and Constitution.

Baltimore Sun: Trump’s Tweetstorm Slamming FBI Rings Shallow

By Editorial Board
Baltimore Sun

It’s not every day that a sitting president savages as “in tatters” the reputation of the federal government’s top law enforcement arm, but it is a fairly common practice for those who have something to fear from police and prosecutors to attack them as biased, ineffectual or dishonest. Given that Donald Trump’s extraordinary claim that the agency’s standing is the “worst in history” came not long after his former national security adviser admitted to lying to an FBI agent about his conversations with the Russian ambassador, Americans can draw their own conclusions as to what’s going on.

Nothing much surrounding President Trump’s latest frenetic Twitter storm is especially shocking. Not Michael T. Flynn’s guilty plea. Not the prospect that special counsel Robert S. Mueller III is closing in on the president’s inner circle. And certainly not Mr. Trump’s customary counter-punch strategy directed mostly at familiar targets, former FBI Director James B. Comey and former Secretary of State Hillary Clinton. What would have been far more surprising would have been for Mr. Trump to remain silent and not give the nation further reason to suspect that he is seeking to obstruct justice.

Perhaps the most notable moment of all came Sunday when Mr. Trump’s attorney, John Dowd, took responsibility for an especially problematic Saturday tweet in which the president admitted he knew Mr. Flynn had lied to the FBI before he fired him — which strongly suggests he knew his adviser had committed a crime when he asked Mr. Comey to go easy on him after the firing (something Mr. Comey testified to under oath before Congress). Mr. Dowd said he dictated that particular tweet and sent it to the White House social media director to be posted.

Does anyone seriously believe Mr. Dowd actually did that? Or was he just protecting his client from a criminal charge (keeping in mind that the tweet in question was one of 10 on the subject of the Russia investigation from Mr. Trump’s account)?

Also in classic Trumpian fashion, the president took a small development and blew it entirely out of context.

To read more click here.

House Republicans Pledge Contempt Charges Against FBI, DOJ

Rep. Devin Nunes, R-Calif.

By Steve Neavling
ticklethewire.com

U.S. House Republicans are preparing to wage war against FBI Director Christopher Wray and Deputy Attorney General Rod Rosenstein as the special investigation into Trump’s campaign increases in intensity.

Intelligence Chairman Devin Nunes and other committee Republicans are drafting a contempt of Congress resolution against the two leaders, claiming lawmakers are being stonewalled as they seek material related to probe, Bloomberg reports

The action follows media reports about FBI Agent Peter Strzok’s  removal from Special Counsel Robert Mueller’s investigative team for writing text messages criticizing Trump and supporting Hillary Clinton.

Nunes said the FBI and Justice Department are refusing to fully comply with an Aug. 24 committee subpoena.

“In light of today’s press reports, we now know why Strzok was dismissed, why the FBI and DOJ refused to provide us this explanation, and at least one reason why they previously refused to make Deputy Director McCabe available to the Committee for an interview,” Nunes said.

“By hiding from Congress, and from the American people, documented political bias by a key FBI head investigator for both the Russia collusion probe and the Clinton email investigation, the FBI and DOJ engaged in a willful attempt to thwart Congress’ constitutional oversight responsibility,” he said.

Other Stories of Interest

Trump’s Controversial Tweet May Bolster Special Counsel’s Obstruction-of-Justice Case

By Steve Neavling
ticklethewire.com

Donald Trump and his personal lawyer may have stepped into serious legal trouble with controversial tweets and remarks this weekend about former national security adviser Michael Flynn.

Trump, who continues to ignore his aides’ advice to stop tweeting about the special counsel investigation, acknowledged in a tweet on Saturday that he was aware of allegations that Flynn lied to the FBI. It’s a crime to lie to the FBI. If fact, Flynn pleaded guilty Friday to lying to the FBI about conversations with the Russian ambassador during the presidential transition in December 2016.

By acknowledging that he knew about the alleged crime – lying to the FBI – Trump may have bolstered the special counsel’s investigation into whether he obstructed justice by urging then-FBI Director James Comey to drop the Flynn investigation, according to legal analysts.

 “It bolsters the intent for committing obstruction,” Barak Cohen, a former federal prosecutor who does white-collar defense work at Perkins Coie law firm, told the Washington Post

A source close to the White House and the case described the tweet as “a screw-up of historic proportions.”

Trump’s lawyer, John Dowd, signed off on the tweet and then repeated the admission on Sunday, baffling legal observers.

Paranoia Grips White House As Trump’s Inner Circle Worries about Secret Recordings

By Steve Neavling
ticklethewire.com

Tension and paranoia have gripped the White House as the special counsel’s investigation gets closer to Donald Trump’s inner circle.

Already on edge, White House officials are questioning whether witnesses for Special Counsel Robert Mueller were wired to covertly record conversations, sources close to the president told Politico

“They’re probably shitting bricks,” said an attorney who represents a senior Trump aide caught up in the Russia investigation. “How can you not?”

The latest bad news for Trump was the revelation that his former national security adviser, Michael Flynn, has agreed to cooperate with investigators after pleading guilty Friday to lying to the FBI.

Trump’s inner circle has already been worried following the discovery that former campaign aide George Papadopoulos reached a secret deal earlier this summer.

White House attorneys and private counsel for current and former Trump aides acknowledged they have asked their clients whether they’ve had discussions with any potential witnesses who could have been wired. 

Special Counsel Robert Mueller’s investigation into alleged collusion between Trump’s campaign and Russia has heated up in recent weeks.

Trump Unleashed Tweetstorm

By Steve Neavling
ticklethewire.com

As the special counsel investigation heats up, President Trump went on the offensive Sunday morning, unleashing an anti-FBI tweetstorm aimed at his own bureau and fired FBI Director James Comey.

Trump insisted the FBI’s reputation “is in Tatters – worst in history” following news that his former national security adviser, Michael Flynn, has agreed to cooperate with investigators after pleading guilty Friday to lying to the FBI.

But not to worry, Trump tweeted: “We will bring it back to greatness.”

The tweetstorm continued as Trump described the FBI agent who was removed from special counsel Robert Mueller’s team as “Tainted (no, very dishonest).”

The agent, Peter Strzok, was dismissed from Mueller’s team after learning that he had written text messages criticizing Trump and supporting Clinton.

In another tweet, Trump suggested a conspiracy was afoot: “Report: “ANTI-TRUMP FBI AGENT LED CLINTON EMAIL PROBE”  Now it all starts to make sense!”

On Monday morning, Trump called the investigation “the greatest Witch Hunt in political U.S. history.”