Today we are apparently having a discussion about whether the President is in fact under investigation. Or perhaps it’s better to say, Trump’s lawyers (or his TV lawyer, legal activist Jay Sekulow) are having this discussion since no one else seems to have any question that he is. What makes this discussion so weird is that not only does the President appear to be the subject of an investigation but as a factual matter there’s almost no question that he’s guilty. As far as I can see, the real question isn’t factual but rather constitutional.
Here’s what I mean.
James Comey was, as head of the FBI, leading an investigation into a number of Trump’s associates. Even if the President was not technically himself being investigated, the investigation clearly touched on him as the head of the campaign which was the subject of the investigation. It was clear in the FBI leadership’s internal discussions that it was considered an open possibility that Trump could in fact eventually be a subject of the investigation.
This was a legitimate investigation in all respects. President Trump fired James Comey to impede or end that investigation. Common sense tells us that. But far more importantly President Trump has said that himself – twice: once to Lester Holt and the day earlier to the Russian Foreign Minister Sergei Lavrov.
Given what we know about the President and the specifics of this case, there is almost a moral certainty that he told numerous advisors and friends the same thing. If we are talking about a President taking a direct action to end an investigation into himself or his associates, again, it seems pretty clear even now.
The real question is constitutional. The President is sui generis in our system. The President isn’t above the law but the law operates with a sitting President in unique ways. He has the statutory right to fire the FBI Director at his discretion, something no one else has the authority to it. He doesn’t need a reason. Can the President be guilty of obstruction for exercising an authority he is entitled to exercise? I would say the answer is yes, for a number of reasons. There are plenty of analogues to situations in which a person does not require a reason to act but in which certain reasons for acting are nevertheless prohibited. But my point here isn’t to litigate that question. It is only to point out that this is a question and further that it seems to me that this constitutional question and the unique role of the President is really President Trump’s only hope.
If the question is, did President Trump act to impede or end a legitimate investigation for the purposes of protecting himself or his friends I think his goose is probably close to cooked.
Luckily for him, the constitutional question is real. Indeed, there’s a very real additional question whether a sitting President can be indicted at all or whether impeachment and removal from office (perhaps followed by criminal prosecution) is the sole remedy to presidential crimes.