Although the White House denies that President Trump asked then FBI Director James Comey to “let this go” — “this” being the agency’s investigation of his fired national security advisor Mike Flynn — Comey’s contemporaneous memo suggests that it may well be true.
If so, the Comey account presents a complex constitutional issue: Can a sitting President be guilty of obstruction of justice for asking the director of the FBI to let go of an investigation of a former White House aide?
The FBI is part of the executive branch of which the President is the head. Under the theory of the unitary executive, all departments within the executive branch are constitutionally under the direction of the President. They are not “independent” agencies. The President may generally tell them what to do.
But what if the FBI is investigating the president or his aides? Does that make it illegal for the President to exercise his constitutional authority over that executive agency? That is the difficult constitutional question.
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In an effort to make the FBI director somewhat independent of the President who appointed him, Congress made his term 10 years, thus assuring that he would serve beyond the term of that President. But it did not take away or limit the power of the President to fire him without any cause, as President Trump did to Director Comey.
Historically, Presidents — as head of the executive branch — directed the Justice Department, of which the FBI is part, whom to prosecute and whom not to. President Thomas Jefferson insisted that his attorney general prosecute Aaron Burr for treason. He tried to micromanage the trial, granting presidential immunity to witnesses who would testify against his archenemy. He even tried to influence the trial judge — his cousin Chief Justice John Marshall.
In more recent times, Presidents John Kennedy and Lyndon Johnson interacted with FBI director J. Edgar Hoover. It is only in subsequent years, especially since Watergate, that a wall of separation has divided the President and the FBI. But this wall is built largely on tradition and internal Justice Department guidelines, rather than on the criminal law.
It thus follows that when evaluating the possibility of criminal charges having been committed by President Trump — the alleged obstruction of justice — this historical context must be considered.
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Additionally, constitutional issues regarding the power of the President to direct the FBI would only be raised if the facts established that anyone other than the President — a lay citizen — would be guilty of obstruction of justice in a comparable situation. That conclusion might well depend on what, precisely, the President asked the FBI director to do.
If he simply asked the director to consider going easy on the fired national security adviser because “he’s a good guy,” that would not amount to a charge of obstruction of justice if the request were made by an ordinary citizen.
But this request came from the President — the only person who has the power to fire the person whom he is asking to “let this go” with regard to a White House staffer. Moreover, the President himself may have been a subject of the FBI investigation — though he claims Comey told him he was not — and so the request may have been self-serving.
Accordingly, the fact that the request came from the President is a double- edged sword.
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One edge favors the President because only he is constitutionally empowered to direct the director what to do.
The other edge disfavors the President because only he has the power to fire a director who refuses his request to “let this go.” Although a gentle request from the President is not quite the same as an offer from the Godfather, it is also not quite the same as a request from an ordinary citizen.
On balance, the obstruction case against President Trump is not strong, as a matter of law. But impeachment is more a matter of politics than law. And the political reality is that Republicans control both houses of Congress. So impeachment is unlikely, at least at this point.
The best response at this time is for Congress to create an independent commission to investigate the entire relationship between Russia and the Trump campaign-administration. Only after such an investigation will we know whether other, more drastic, remedies are appropriate.
Dershowitz is a professor emeritus at Harvard Law School.