SENATOR DIANNE FEINSTEIN may be provoking a constitutional conflict between the legislative and executive branches of our government. The California Democrat has said that Congress is investigating whether President Trump engaged in obstruction of justice by firing FBI Director James Comey and taking other actions to halt the Russian investigation.
Feinstein said: “I think what we’re beginning to see is the putting together of a case of obstruction of justice, I think we see this in the indictments — the four indictments and pleas that have just taken place.
“And I see it, most importantly, in what happened with the firing of Director Comey, and it is my belief that that is directly because he did not agree to lift the cloud of the Russia investigation, that’s obstruction of justice.”
No, it isn’t.
Feinstein does not seem to understand that under our constitutional system of separation of powers, the president cannot be charged with a crime for merely exercising his authority under Article 2 of the Constitution. This authority includes firing the director of the FBI, for whatever reason or no reason. It also includes the authority to tell prosecutors who to prosecute and who not to. A president’s motives may not be the basis for a criminal charge. Nor is it proper to psychoanalyze the president in a search for possible evil motives. All presidents act out of mixed motives, including self-aggrandizement, political advantage, partisan benefit, and personal pique.
Consider, for example, President Barack Obama’s benighted decision, as a lame duck, to tie the hands of his successor by unilaterally changing the longstanding American policy with regard to the United Nations condemnation of Israel. The president, over the objection of many members of Congress and most Americans, instructed his UN ambassador not to veto a Security Council Resolution that declared the Western Wall, the Jewish Quarter of Jerusalem, and the access roads to Hebrew University and Hadassah Medical Center hospital, to be illegally occupied territory. Why did Obama exercise his authority in so pernicious a manner? I believe, and many Americans believe, that he did it out of spite and pique: to get even with Prime Minister Benjamin Netanyahu. If I am right, and I am sure that this was at least one of his motivating considerations, could he be charged with a crime for abusing his authority for personal vengeance? Of course not. We can condemn him, as I and others have. But we must all acknowledge that he had the authority to do what he did, regardless of his bad motives.
Ironically, it was the effort of the Trump administration to prevent the lame-duck president from tying the hands of the president-elect, by not vetoing the UN resolution, that formed the basis for the lying charge levied against General Michael Flynn. For whatever reason, Flynn lied — but what he lied about was entirely lawful.
Trump would have been within his constitutional authority to pardon Flynn, as Flynn hoped he would do. That would have kept him from cooperating with the special counsel and becoming a government witness. Had the president done that, he would have acted entirely lawfully, as President George H. W. Bush did when he pardoned Caspar Weinberger in order to stop the Iran-Contra investigation. Although special prosecutor Lawrence Walsh complained bitterly that the Bush presidential pardon had the intent and effect of completely closing down his investigation, no one suggested that Bush had committed the crime of obstruction of justice. Why? Because that was Bush and this is Trump — a pure ad hominem distinction that should be given no weight by the law.
It would do violence to our constitutional separation of powers if a president could be charged with a crime simply for exercising his constitutional authority. Checks and balances do not include the power to criminalize — through the vague obstruction of justice statute — presidential actions authorized by Article 2. Both Presidents Richard Nixon and Bill Clinton were accused of obstruction of justice, but in both cases they were accused of going well beyond the mere exercise of their constitutional authority. Nixon was accused of telling subordinates to lie to the FBI, paying hush money to potential witnesses, and destroying evidence. Clinton was accused of trying to get witnesses, such a Monica Lewinsky, to lie. These charges constitute acts — independent crimes — that go well beyond a presidential authority. Trump has not been accused of any acts that would independently constitute crimes. The entire case against him, as outlined by Feinstein, consists of constitutionally authorized acts that were well within the president’s authority under Article 2. That is an enormous and consequential difference under our system of separation of powers.
So, until and unless there is proof that Trump has committed an independent criminal act — beyond acts that are within his constitutional prerogative — it would be unconstitutional to charge him with obstruction of justice, regardless of what Feinstein and others believe his motive may have been.
Alan M. Dershowitz is professor of law emeritus at Harvard Law School and author of “Trumped Up.”