The president has not obstructed justice because the president cannot obstruct justice. Such was the astonishing argument advanced on Monday by the president’s personal lawyer, John Dowd. On its face, the claim looks patently ridiculous, contradicted by history, law and elemental logic.



If the president cannot obstruct justice, what on earth did Congress think it was doing when it drafted articles of impeachment against presidents Richard Nixon and Bill Clinton on precisely these grounds? If a president destroys evidence germane to a criminal investigation, what is that if not obstruction of justice? The answer seems so obvious that it’s hard to take seriously claims to the contrary. But claims there are, and they come from some notable authorities.

Dowd’s statement would provide a good starting point to evaluate these claims were there not powerful reasons to question not simply his objectivity, but his basic lawyerly reasoning.



On Saturday, 24 hours after the announcement that Trump’s former national security adviser was cooperating with the Mueller investigation, the president tweeted that he had been forced “to fire General Flynn because he lied to the vice-president and to the FBI”.

I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide! — Donald J. Trump (@realDonaldTrump) December 2, 2017

Alas, for the president it was promptly noted that far from demonstrating that he had acted responsibly by axing Michael Flynn, the tweet was deeply incriminating, as it suggested the president already knew Flynn had lied to the FBI when he asked then director James Comey “to see your way to letting this go …”



But Dowd then jumped into the fray, proclaiming that he had personally vetted the tweet, something that seemed less to defang its incriminating content than to call his judgment into question. In a fruitless act of damage control, Dowd then began arguing that Trump had not obstructed justice because he cannot.

Still, Dowd is hardly alone in making this claim. On Fox & Friends,, Alan Dershowitz insisted: “You cannot charge a president with obstruction of justice for … tell[ing] the justice department who to investigate and who not to investigate” – an appearance that earned the Harvard Law professor a “must-watch” endorsement from the president.

More aggressively still, John Yoo, together with Saikrishna Prakash of the University of Virginia law School, argue in Monday’s New York Times that the president “even has the power to pardon … targets [of an investigation], including himself”. As for the legality of firing Comey, Yoo and Prakash agree with Dershowitz: “The president can fire any … high-ranking justice department official for any reason or no reason at all.”

Where does this remarkable power come from? Yoo and company could appeal to the principle of rex non potest peccare – the idea, endorsed by William Blackstone in the 18th century, that the king can do no wrong. The problem, of course, is that America has no king and in fact fought a revolution over this ticklish matter. Instead, Yoo and others appeal to the idea of the “unitary executive”, a murky theory that holds the constitution grants the president plenary power to control and supervise the executive branch.

Where does the constitution speak of such vast and unchecked powers? Yoo waves at the requirement that that president “take care that the laws be faithfully executed”. But rather than draw from this benign bit of constitutional text the idea that the chief executive must be a dutiful servant of the rule of law, Yoo finds in it a fount of prodigious presidential power.



Equally revealing for Yoo is Alexander Hamilton’s statement in the Federalist Papers that the constitution calls for “energy in the executive”. What could be a greater sap on presidential energy than the need to abide by federal law?

It is worth recalling where this “theory” of the unitary executive has gotten us before. Yoo now teaches at Berkeley Law School, but during his tenure in the Office of Legal Counsel under George W Bush, he penned the notorious “torture memos”.



Drawing on his unorthodox notion of executive power, Yoo opined that the federal law criminalizing torture would arguably be unconstitutional if applied as a limitation on presidential power in wartime. I often try to avoid what I call the reductio ad Nazium, but in this case we can safely say that such reasoning would have found a home in the Third Reich.

Granted, rejecting the theory of the unitary executive leaves two other important matters untouched: whether Trump, in fact, obstructed justice, and, if he did, whether as a sitting president he can be indicted for a crime. (There are those who argue, with some plausibility, that a president can be indicted only after first being removed from office.)

But to answer the question whether a president can obstruct justice: the answer is yes – unless you happen to believe that he can also order torture, or, for that matter, genocide.