The brazen assertion Monday by one of President Trump’s lawyers that a president cannot be found guilty of obstruction of justice signaled a controversial defense strategy in the wide-ranging Russia probe, as Trump’s political advisers are increasingly concerned about the legal advice he is receiving.
.. Trump tweeted over the weekend that he knew then-national security adviser Michael Flynn lied to the FBI about his contacts with the Russian ambassador before firing him in February — and before FBI Director James B. Comey said Trump asked him to be lenient while investigating Flynn. Experts said the president’s admission increased his legal exposure to obstruction-of-justice charges
.. Trump’s personal lawyer John Dowd sought to excuse the president’s tweet in part by telling Axios and NBC News on Monday that 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 declined to elaborate on his theory or explain the emerging legal strategy to The Washington Post.
Inside the White House, some senior officials were baffled that Dowd publicly offered this interpretation of the law, which has been advanced since the summer by constitutional scholar Alan Dershowitz in defense of Trump but flatly dismissed by many other legal scholars.“We have a president, not a king,”.. “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?’”.. “You cannot charge a president with obstruction of justice for exercising his constitutional power to fire Comey and his constitutional authority to tell the Justice Department who to investigate, who not to investigate,” Dershowitz said. “That’s what Thomas Jefferson did, that’s what Lincoln did, that’s what Roosevelt did. We have precedents that clearly establish that.”.. Dershowitz was appearing on “Fox & Friends,” a pro-Trump morning show that the president regularly watches. After his appearance, Trump tweeted, “A must watch: Legal Scholar Alan Dershowitz was just on @foxandfriends talking of what is going on with respect to the greatest Witch Hunt in U.S. political history.”.. Furthermore, he wrote, “the president has the constitutional authority to stop the investigation of any person by simply pardoning that person.”
.. Cobb and Dowd have urged Trump to cooperate fully with Mueller’s investigation, providing documents when asked by the special counsel and encouraging White House staffers to comply with requests for interviews... Cobb and Dowd also have been privately assuring the president that the Mueller probe was likely to reach its conclusion by the end of this year, complete with a public exoneration of Trump of any wrongdoing... In Monday’s interview, Cobb said he still believes Mueller’s investigation of Trump will reach “an appropriate result” by Christmas or early January... Stephen K. Bannon — have been grumbling for weeks that the president’s legal strategy is too compliant with Mueller and not combative enough... “The concern is that every time the president feels a little bit of pain from what Mueller’s doing, [his lawyers] give him OxyContin and tell him he’ll be fine by the morning,” this strategist said metaphorically.. Cobb said, “There’s no question that Bannon is doing the president a great disservice by agitating persistently on this issue. Internally, where people are actually informed, there’s no consternation about the decision to cooperate fully with the special counsel, and Mr. Bannon has yet to identify what fights he would pick and how constructive that would be.”
.. In 1999, Attorney General Jeff Sessions, then a senator from Alabama, argued that Clinton should be removed from office for obstructing justice in the investigation into his relationship with White House intern Monica Lewinsky.“The facts are disturbing and compelling on the president’s intent to obstruct justice,” Sessions said at the time.
The first problem is it seems to contradict what Yates has said in her testimony to Congress. Yates said she had informed McGahn about a) Flynn being interviewed and b) that he had provided bad information to the White House. But she also clearly seemed to suggest she didn’t share details of Flynn’s comments to FBI investigators with McGahn.
.. The White House is saying — clearly, for the first time — that Trump did indeed know Flynn had offered a problematic account of his contacts with the Russian ambassador to the FBI. You might recall back in mid-February that Trump basically had to be dragged kicking and screaming into firing Flynn, and he seemed to regret it in the weeks afterward. He only did it after public pressure became so intense over Pence’s false denials that the White House had no other choice.
.. Now, according to what Dowd is saying, Trump also resisted firing Flynn for weeks even though he was informed that Flynn had apparently made the same types to statements to the FBI. Trump really wanted to keep Flynn on, apparently, because he was willing to put up with his own adviser misleading federal law enforcement.