The blatant badertion of one of President Trump's lawyers that a president can not be found guilty of obstruction of justice pointed to a controversial defense strategy in Russia's extensive investigation, since Trump's political advisers are each more and more concerned about the legal advice he is receiving.
Trump tweeted over the weekend that he knew that national security adviser Michael Flynn lied to the FBI about his contacts with the Russian ambbadador before firing him in February, and before FBI Director James B. Comey said that Trump asked him to be lenient when investigating Flynn. Experts said the president's admission increased his legal exposure to obstruction of justice charges, one of the major crimes under investigation by Special Advisor Robert S. Mueller III.
But Trump's lawyer John Dowd tried to excuse the president's tweet in part by telling Axios and NBC News Monday that the "president can not obstruct justice because he is the chief law officer under [the Constitution’s Article II] and has all the Right to express your opinion on any case. "
Dowd refused to explain his theory or explain the legal strategy for The Washington Post.
Inside the White House, some senior officials were puzzled because Dowd publicly offered this interpretation of the law, which has been advanced since the summer by the constitutional scholar Alan Dershowitz in defense of Trump, but dismissed outright by many other legal scholars .
Ty Cobb, A White House lawyer overseeing his handling of the Russian investigation said Monday that the Dershowitz-Dowd theory was not the official legal strategy of the president.
"It's interesting as a legal technical issue, but the president's lawyers try to present a defense based on facts, not a mere legal defense," Cobb said in an interview with The Post. "That should solve things, but we'll all see."
When asked if Trump agrees that a president can not obstruct justice, Cobb responded: "I never talk about the president's beliefs or discuss communications between the president and his lawyers."
Many lawyers and legal academics in Washington refuted Dowd's interpretation, citing several court cases and articles of indictment – as well as, in the words of an expert, "common sense".
"We have a president, not a king," said Sam Berger, senior policy adviser at the Center for American Progress, a liberal think tank. "Nobody is above the law, be it Trump or any of his close badociates." It's the kind of desperate claim that makes you ask, "What exactly are you hiding?"
Berger argued that Dowd's reasoning amounts to a "Hail Mary pbad" for the president to escape responsibility. "This response, if it's the president, is not a crime," he has never flown with the American people or our legal system in any context, "he said. "To affirm that the president can not hinder justice contradicts both common sense and past precedent."
Some legal experts, however, support Dowd's claim. Dershowitz, a professor at Harvard Law School, said on Fox News Channel Monday that Trump was within his rights when he fired Comey.
"You can not accuse a president of obstruction of justice for exercising his constitutional power to dismiss Comey and his constitutional authority to tell the Justice Department who to investigate, who does not investigate," Dershowitz said. "That's what Thomas Jefferson did, that's what Lincoln did, that's what Roosevelt did, we have precedents that clearly state that."
Dershowitz appeared on "Fox & Friends," a pro-Trump morning show that the president sees regularly. After his appearance, Trump tweeted: "You have to look: academician Alan Dershowitz just talked to @foxandfriends about what is happening with regard to the biggest witch hunt in the political history of the United States."
Dershowitz wrote a column in June The Washington Examiner in which he argued that Trump's efforts to stop the FBI investigation could not be considered an obstruction because he was constitutionally empowered as president to direct the attorney general and the director of the FBI and tell them Who to prosecute
In addition, he wrote, "The president has the constitutional authority to stop the investigation of any person simply by forgiving that person."
Within Trump's political orbit, concerns have grown in recent weeks about Trump's legal strategy, developed by Cobb and Dowd, as well as attorney Jay Sekulow, who at key moments has served as the public face of the defense team.
Cobb and Dowd have urged Trump to fully cooperate with Mueller's investment The 19659002 The two men have tried to badure White House aides that Trump is not vulnerable to obstruction of justice charges. "They believe that everything is clean there," said a senior administration official, who spoke on the condition that the anonymity be sincere.
Cobb and Dowd have also privately badured the president that Mueller's investigation is likely to be completed by the end of this year, with a public exoneration of Trump for any crime. That timeline seems overly optimistic to some legal experts, considering that Mueller accused Flynn of lying to the FBI and badured his cooperation in the ongoing investigation.
In Monday's interview, Cobb said he still believes Mueller's research on Trump will come to "an appropriate result" for Christmas or early January.
[Inside the secretive nerve center of the Mueller investigation]
But some Trump advisers and outside allies – including White House chief strategist Stephen K. Bannon – have been grumbling for weeks that the president's legal strategy is too compatible with Mueller and not combative enough.
A Republican strategist in frequent contact with senior White House officials said there had been "consternation" among Trump's political advisers in recent days.
"The concern is that every time the president feels a little pain for what Mueller does, [his lawyers] give him OxyCotin and tell him that he will be fine in the morning," said this strategist metaphorically, speaking in the condition of anonymity to discuss a sensitive issue. "Instead of being aggressive advocates who defend the president's prerogatives, they turn to the theory that Mueller is fair and everything will end soon."
These concerns grew in the last 48 hours, when Dowd tried to explain the president's tweet about firing Flynn in a series of media interviews that drove back some Trump loyalists.
When asked to respond to criticism from the legal team, Cobb said: "There is no doubt that Bannon is doing great harm to the president, persistently waving about this issue, internally, where people are really informed, there is no dismay about the decision to cooperate fully with the special adviser, and Mr. Bannon has not yet identified what struggles he would choose and how constructive it would be. "
Go ahead, Cobb said: "I will not litigate every isolated event that people can testify or ask in the press because that is not fair to the process or to the special lawyer or witnesses."
The Brookings Institution in October published a 108-page study entitled "Presidential Obstruction of Justice: The Case of Donald J. Trump." The authors reviewed the articles of indictment against presidents Richard Nixon and Bill Clinton, and those drafted against judges Harry Claiborne and Samuel Kent. They concluded that "obstruction, conspiracy and the condemnation of a federal crime have previously been considered by Congress as valid reasons for dismissing a duly elected president"
Co-author Norm Eisen, former special badistant to ethics and government The Obama administration and a senior researcher in governance studies at Brookings said, "There is a long list of cases that argue that when a government official exercises legal authority with corrupt intentions, they can be prosecuted for obstruction. of the idea that no person is above the law. "
In 1999, Attorney General Jeff Sessions, then a senator from Alabama, argued that Clinton should be fired for obstructing justice in investigating his relationship with White. Inmate of the house Monica Lewinsky.
"The facts are disturbing and convincing about the president's intention to obstruct justice," Sessions said at the time.
Josh Dawsey contributed to this report.