Conservative legal scholars debate: Can the president obstruct justice?

Senior Political Correspondent
Yahoo News
Former Attorney General Michael Mukasey. (Photo: Cliff Owen/AP)
Former Attorney General Michael Mukasey. (Photo: Cliff Owen/AP)


WASHINGTON — On Wednesday morning, as the grave and unpleasant topic of impeachment entered the American political conversation, the leading conservative legal group convened its annual daylong meeting just blocks from the White House.

The Federalist Society handed out media packets to reporters that included a 2014 news article about how the group was at that time discussing the possible impeachment of President Barack Obama for “constitutional excesses.”

But when it came to the current White House occupant and the debate over possible obstruction of justice related to the FBI’s investigation into Russian interference in the 2016 election, one of the Federalist Society’s founding members was unequivocal in his support of President Donald Trump.

“President Trump acted appropriately if he gave guidance to Director Comey on an investigation. It is important for us to step back and remember that under the Constitution, the president has the authority and power to enforce the laws,” said David McIntosh, who is also the head of the Club for Growth, a pro-business conservative advocacy group.

McIntosh defended Trump’s reported request of former FBI Director James Comey to drop an investigation into Russian contacts with Trump’s former national security adviser Michael Flynn.

“Presidents have wisely chosen to insulate the FBI from political interference,” McIntosh said, but “the president still has the power and authority to direct the FBI how to do their job.”

A little later, another panelist at the Federalist Society meeting — former Attorney General Michael B. Mukasey — at first echoed McIntosh’s line of argument.

“The president has power to direct that an investigation cease,” Mukasey said.

But Mukasey, who served under Republican President George W. Bush, then went on to make a series of comments that were severely disapproving of Trump’s reported conduct.

First, Mukasey said he was not sure Trump understood the implications of what he was doing.

“As the story is told … it’s kind of informal: ‘Hey, would you cut this guy some slack? He’s a nice guy.’ And that kind of conversation about an ongoing proceeding, conducted in a manner that is extraordinarily informal … suggests complete unconsciousness of what it is that’s actually happening,” Mukasey said.

He continued: “That conversation might be appropriate to a minor disciplinary matter at a big corporation. It’s not appropriate to a criminal investigation. The inability to distinguish the one from the other, I think, is extraordinary.”

The implication in Mukasey’s comments seemed to be that President Trump does not understand the job he now holds. It’s a concern that was echoed by Bob Bauer, a former White House counsel to President Obama.

“The missing piece here, alarmingly, is a conception of the presidency. He seems to be imagining that he is running one of his companies,” Bauer wrote Wednesday. “Where [former President Richard] Nixon put the government at risk with a misbegotten political morality, Trump is failing, badly, because he is vainly running on a certain marketplace morality, compatible with his temperament, that once won him money and attention.”

One observer in the room at the Federalist Society meeting said he was surprised by the strength of Mukasey’s condemnation. And sources with expertise in the matter of presidential power said that Mukasey’s comment about the president’s legal authority to end an investigation is true as a technical matter but does not obviate the issue of obstruction of justice.

A president can intervene in a situation where he or she believes there has been bad judgment on the part of prosecutors, legal experts said. But when a president’s personal interests or behavior are in question, and he involves himself, it raises the issue of obstruction.

“If it’s obstruction of justice then he can’t do it,” one legal expert said, who asked not to be quoted by name given the sensitivity of the discussion.

McIntosh, however, disagreed with that interpretation when interviewed by Yahoo News later in the day.

“When the president has the authority to say what he said, it can’t possibly be obstruction of justice,” McIntosh said. “The president can direct any investigator, any legal authority how to do their job. If he does it in a way that the public feels is inappropriate, the remedy is the next election.”

That’s an extreme view of how far executive power goes that’s unlikely to be widely adopted, but for any congressional Republicans looking for a rationale to cling to, it might suffice. McIntosh said Republicans in Congress should “stop trying to worry about what the press is doing,” pass legislation, and “don’t try to interfere with the president doing his job.”

Yet in addition to concerns about obstruction of justice, there are also the “norms” that govern a president’s behavior when it comes to ongoing investigations, created and upheld to bolster confidence in the impartiality of the law. And in this matter both Mukasey and another former White House lawyer agreed that what Trump did in urging Comey to drop the Flynn matter was highly unusual and potentially damaging to the country.

Mukasey said that never in his 15 months as attorney general did he see President Bush or anyone from the Bush White House involve themselves in any ongoing criminal investigation.

“The norm was observed,” Mukasey said.

Former White House counsel Neil W. Eggleston, who served under President Barack Obama for the last two and a half years of his second term, was on the panel with Mukasey. He stressed that Obama observed the same rule, and also steered clear of any prejudicial comments when responding to national tragedies such as violent mass shootings.

“A really important norm that I spent an enormous amount of time policing when I was at the White House was that the White House stays out of criminal investigations, full stop. Full stop. Never did it. Full stop,” Eggleston said.

“I would have him talk about the tragedy of the shooting but he would not conclude whether the shooter was guilty of something. Even Dylann Roof, he didn’t condemn Dylann Roof and say he should be punished for anything,” Eggleston said, referring to the convicted murderer who in 2015 shot and killed nine people in a Charleston, S.C., church.

“[Obama] was empathetic to the families of the people who had been killed but he stayed out of ascribing guilt,” Eggleston said. “It was my view that the president of the United States … absolutely had to stay out of any criminal matter whatsoever.”

“I think that’s a critical norm,” Eggleston said. “If people think it’s based on anything other than career prosecutors, then our society is in a difficult state.”

Mukasey pushed back, reminding Eggleston that Obama had spoken out in October 2015 about Hillary Clinton’s use of private e-mail server when she was Secretary of State. “This is not a situation in which America’s national security was endangered,” Obama said then, even though the FBI was actively investigating the matter.

News reports at that time noted that Obama’s comments angered the FBI, and on Wednesday, Eggleston confided that he had weighed in disapprovingly in a conversation with the president.

“He [Obama] was talked to by the White House counsel after that,” Eggleston said.

Obama also in 2012 weighed in on a similar matter involving former CIA Director David Petraeus, who was being investigated by the FBI for providing highly classified information to his biographer, also his mistress, and then lying to FBI investigators about it.

Comey’s FBI recommended to Obama’s attorney general, Eric Holder, that Petraeus face felony charges and possible jail time, but the administration allowed the four-star general and adviser to Obama to plead guilty to a lesser charge that did not require him to serve a prison sentence.

And there are other precedents. George W. Bush, before Mukasey’s time at the head of the Justice Department, said in 2005 that he believed former House Majority Leader Tom DeLay, R-Texas, was innocent of money-laundering charges before his trial began.

DeLay was convicted, but the verdict was overturned on appeal.

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