Monday, December 4, 2017
First, let's look at the precise words attributed to the President's outside counsel John Dowd in Axios: "The President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution's Article II] and has every right to express his view of any case." Dowd does not appear to be speaking to the broad constitutional question of whether any sitting President can be indicted and tried while serving as President. He instead appears to be saying, as many of us have, that the President, as chief law enforcement officer, can express whatever the President's views of the Flynn investigation are to (former) FBI Director Comey. He can also ask Comey to go easy on Flynn. He can direct Comey to stop investigating Flynn. He can fire Comey if Comey refuses to stop the investigation. Trump can do this, not because he is above the law, but because he is the Chief Officer of the Executive Branch. It has nothing to do with whether Trump was trying to protect himself from prosecution or whether Trump already knew that Flynn had lied to government officials when Trump allegedly asked Comey to go easy on Flynn. As long as the statement ("Go easy on him; he's a good guy") or the act (firing) does not independently violate another constitutional provision (for example, the Equal Protection Clause) or a federal statute, it can never, in this view, constitute obstruction. It may be wrong. It may be impeachable. But it cannot be a criminal offense.
What the President cannot do, under federal criminal law, is instruct another person to lie to federal investigators/law enforcement officers, and the President cannot himself lie to such officers. That is classic obstructive conduct that violates the law, no matter who does it. In this instance, the President's title or position would not be not a defense.