Did Donald Trump Obstruct Justice?

We had a fun argument earlier this week on CNN between Jeffrey Toobin and Alan Dershowitz over whether or not Donald Trump obstructed justice by his conduct toward former FBI director James Comey. You can see it here (4:43).

Toobin claimed that Trump obstructed justice:

• That the alleged request by Trump to Comey to lay off investigating former National Security Advisor Michael Flynn would have constituted obstruction of justice;
• That Trump’s firing of Comey was obstruction of justice.

Dershowitz disagreed. He argued that Trump had the constitutional options to order Comey directly to cease investigating Flynn or even to grant Flynn an executive pardon. Dershowitz cited the example of Caspar Weinberger, who had served as Secretary of Defense for Ronald Reagan and who had been indicted by Independent Counsel Lawrence Walsh in 1992, accusing Weinberger of perjury and obstruction of justice during the Iran-Contra Affair. President George H. W. Bush pardoned Weinberger before these charges could be tried.

Dershowitz did not argue that Trump should get a free pass, just that his behavior was within his authority under the Constitution and did not constitute a crime. During the interview, Dershowitz said, “Impeachment is political. There is no judicial review of impeachment. You can impeach a president for jaywalking.”

I have to agree with Dershowitz, not just because of his reputation as a constitutional law scholar. Where does the FBI appear on the constitutional org chart? It is within the Justice Department, part of the Executive branch. The FBI is not an independent agency — does anybody really want it to be? (Anybody remember J. Edgar Hoover?)

As such, the FBI director serves at the pleasure of the president, who has the constitutional authority to dismiss the director for any reason, or no reason at all. This is not to say that there will be no political consequences for the president. Lyndon Johnson wanted to dismiss Hoover, but drew back from the political consequences [see Halberstam, The Best and the Brightest, p. 529]. Trump went ahead and fired Comey, and he can live with the political consequences of having done so.

Abuse of political power is a perfectly good reason to impeach a president. Congress also has less extreme options at its disposal, such as cutting funding for the president’s programs and either refusing or delaying consideration of the president’s legislative agenda.

Criminalizing political behavior you don’t like is a bad road to go down. It would represent another step toward being a banana republic with no bananas.

In this case, it is political spinelessness that causes people to seek some artificial objective standard — never mind that it is not applicable. If you don’t like the man’s politics, come out and say so. Seek political means to counteract them.

And if you’re in journalism, and you are concerned that you can’t object to someone’s politics and still appear unbiased, you’re absolutely right. You have to choose your course and live with the consequences no less than a politician has to.