Can the President Obstruct Justice?

A surprising number of presidential scandals have involved alleged attempts to cover up wrongdoing. In light of this history, it might appear strange to ask, “Can the president obstruct justice?” The answer would seem obviously to be yes. That is probably correct, but the issue is more complicated than it initially appears. This chapter recounts the arguments on both sides, describes the elements of obstruction of justice, and discusses historical examples. The great weight of argument suggests that the president can obstruct justice, but this question is not likely to be decided by courts or even on the basis of traditional legal arguments. The real question is whether Congress can be persuaded to impeach and convict a president for obstruction of justice. Experience indicates that the answer is yes, in the right circumstances. Whether those circumstances exist depends on the vigilance of the American people.

Can the President Be Compelled to Testify under Oath?

Executive privilege is a doctrine closely akin to attorney-client privilege that allows presidents to resist judicial demands for evidence or testimony under hazily defined circumstances. It is frequently the bane of a special prosecutor’s existence. This chapter recounts the story of United States v. Nixon, the only executive privilege case ever decided by the U.S. Supreme Court—and the only court decision ever to bring down a sitting president. Despite this dramatic outcome, the Court’s decision left much room for debate. As a result, most executive privilege disputes are resolved through negotiation and not by the courts. In the background of every such negotiation, a single question looms larger than all the rest: What will the American people stand for? Here, too, the choice is ours.

A New Balance

After the ordeal of Bill Clinton’s impeachment, few wished to resurrect a strongly independent special prosecutor. But nor did anyone wish to return to the wholly unregulated approach of the previous era. Was there not some middle ground? In the waning days of the Clinton administration, Attorney General Janet Reno convened a task force to answer this question. For nearly twenty years, the intricate rules this group drafted went largely untested. Then Donald Trump was elected president. This chapter recounts the drafting of these rules and the appointment of special counsel Robert Mueller to investigate allegations of collusion between Trump’s 2016 campaign and the Russian government. Political pressure forced Trump to acquiesce in Mueller’s appointment. This gave Trump and his allies powerful political incentives to attack Mueller, which they did with ruthless ferocity. For special prosecutors, this is the norm. For the American people, it is cause for intense vigilance.

A Special Kind of Prosecutor

This chapter explains the unique role that special prosecutors play in the American constitutional system. Their job is to ensure that even the highest government officials are not above the law. They do this by investigating and prosecuting alleged wrongdoing by the president and his close associates. To carry out this difficult charge, special prosecutors are granted the same formal powers as ordinary federal prosecutors, with one crucially important difference. For special prosecutors, the power to investigate and authorize criminal charges is confined to particular persons or suspected crimes. This difference has profound implications for the conduct of special prosecutor investigations. Most important, it places special prosecutors squarely in the public spotlight. That gives the president’s allies a strong incentive to discredit special prosecutors. It also enables the public to hold the president accountable. Only if the American people take this responsibility seriously can special prosecutors function effectively.

Can Congress Protect Special Prosecutors from the President?

Can Congress constitutionally restrict the president’s power to remove a special prosecutor? In a 1988 case called Morrison v. Olson, a nearly unanimous Supreme Court held that the answer was yes. Only Justice Antonin Scalia dissented. This chapter recounts the dramatic story of that case and the subsequent developments that have caused many commentators to question the vitality of the Court’s ruling. Partly for this reason and partly for reasons of ordinary politics, Congress seems unlikely to pass legislation protecting special prosecutors any time soon. As a result, the responsibility for protecting special prosecutors now rests where it has for most of U.S. history—squarely on the shoulders of the American people.

The First One Hundred Years

Between 1875 and 1973, five different presidents appointed special prosecutors to investigate all manner of high-level official corruption. This chapter tells the stories of three such investigations, which provide crucial lessons for understanding modern-day special prosecutors. In each case, popular outcry over alleged misconduct by high executive officials forced the president to appoint a special prosecutor to restore public confidence. In each case, the high public salience of the resulting investigation gave the president’s supporters powerful incentives to attack the special prosecutor. But the special prosecutor’s visibility also provided the American people a potent tool for holding presidents accountable. Right from the beginning, politics was a double-edged sword for special prosecutors and their ability to safeguard the rule of law.

Introduction

How did special prosecutors come to exercise significant power, despite serving purely at the pleasure of the president? Why has the United States rejected stronger institutional safeguards of the sort embraced by other advanced democracies? What does this history means for special prosecutors today? The short answer to all of these questions is that special prosecutors function as catalysts for democracy. By raising the visibility of presidential misconduct, they enable the American people to hold the president accountable for his actions. But just like presidents, special prosecutors can abuse their power. To guard against this risk, the president retains the power to fire a special prosecutor at any time. If he exercises that power corruptly or capriciously, special prosecutors have no legal remedy. But they are not unprotected. The president must ultimately answer to the American people. This has proved a surprisingly powerful deterrent.

Epilogue

The history and law of special prosecutors teach a single overarching lesson. The rule of law is as strong as the American people choose to make it—and no stronger. In some sense, this is heartening. It is also a sobering reminder. The democratic institutions and traditions handed down by previous generations are not indestructible. Like any other inheritance, they can be squandered, and there are real reasons to fear we are doing just that. In these unsettled times, special prosecutors might serve as highly visible catalysts for democracy. Or they might be swept asunder by the floodtides of populism and political polarization. These large structural forces are central features of contemporary American politics, but scratch the surface and those forces comprise millions of individual citizens with minds of their own. The choices of those individuals—our choices—will determine the fate of constitutional democracy in America.

Can the President Be Charged with a Crime?

What if a sitting president accepted illegal foreign campaign donations or sought to obstruct an ongoing federal investigation? Could he be charged with a crime? The conventional wisdom is no, but the Constitution is silent on this question, no court has ever decided it, and there are respectable arguments on both sides. This chapter recounts these arguments and the intense debates they provoked among the young lawyers working for past special prosecutors. Ultimately, both Leon Jaworski and Ken Starr chose not to indict the president. Future prosecutors are likely to follow the same course. This does not mean that special prosecutors are powerless to hold the president accountable for violating the law. But if they are to do so, the American people have a central—and daunting—role to play. Once again, the last, best hope for the rule of law is not judges or lawyers but democratic politics.

A Cancer on the Presidency

This chapter recounts the special prosecutor investigation that forced Richard Nixon to resign the presidency on August 8, 1974. On the surface, this outcome seems distinctly improbable. Nixon actually allowed himself to be forced from office by a special prosecutor he had the power to fire at any time. What can explain this result? The obvious answer is intense and sustained political pressure, which was made possible by the special prosecutor’s high public visibility. Never has the power of special prosecutors—or the dependence of that power on the vigilance of the American people—been clearer.