(Getty/Alex Wong)

Trump's lawyers have a worrisome obstruction of justice defense

The president's legal team is making a surprising claim when it comes to whether or not he can be held accountable


Jeremy Binckes
December 4, 2017 12:15PM (UTC)

President Donald Trump's future appears to be in legal jeopardy. Because he's prone to saying what's on his mind at any given time, his legal defense team — charged with keeping the president out of jail at this point — is tasked with coming up with creative arguments to defend him.

This latest one should worry everyone.

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Trump "cannot obstruct justice because he is the chief enforcement officer," the president's lawyer, John Dowd, told Axios. If this seems like shades of Richard Nixon telling David Frost, "When the president does it, that means that it is not illegal," it should. As Axios noted, obstruction of justice was the charge Nixon was facing, too. Here are the articles of impeachment that Nixon could have faced in 1974:

In his conduct of the office of President of the United States, Richard M. Nixon, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has prevented, obstructed, and impeded the administration of justice . . .

Over the weekend, Trump tweeted that he "had to fire [Michael] Flynn because he lied to the vice president and the FBI," signifying that the president knew that Flynn had lied to the FBI before Trump told then-FBI Director James Comey that the FBI shouldn't investigate Flynn, who pleaded guilty Friday to lying to federal agents earlier this year.

The White House said the tweet was written by Dowd; that raised eyebrows, because it could lead to a political mess in the long run.

More importantly, Dowd's legal claim seems to be admitting that there's no way to deny that Trump hadn't obstructed justice. Anyone looking for obstruction of justice charges could easily point to his tweet, or his longstanding threats to have special counsel Robert Mueller fired. Or they could take the words from the president's mouth — like when he told Lester Holt on national television that he fired Comey to put an end to the Russia investigation.

Democrats are using a possible obstruction of justice claim to go all-in against the president, but that may not even be enough.

Though we've never seen a president of the United States led out of the White House in handcuffs — and Trump's legal team hopes that doesn't happen — impeachment is a political act. That means that it's likely not going to happen anytime soon.

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With Republicans in control of both houses of Congress, ask yourself if they're more likely to challenge the president, or more likely to agree with Dowd's claim that Trump is above the law.


Jeremy Binckes

Jeremy Binckes is the senior news editor at Salon.com.

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Donald Trump Obstruction Of Justice Trump-russia Investigation

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