A recently published letter from President Donald Trump’s attorneys claiming that the president could not have obstructed the federal investigation into ties between his campaign and Russia is deeply flawed, 14 prominent law professors and legal scholars said Monday in a pointed rebuttal sent to top lawyers at the White House.
“The Office of the President is not a get-out-of-jail free card for lawless behavior,” the professors wrote in their letter, obtained by POLITICO. “Indeed, our country’s Founders made it clear in the Declaration of Independence that they did not believe that even a king had such powers; they specifically cited King George’s obstruction of justice as among the ‘injuries and usurpations’ that justified independence. Our Founders would not have created — and did not create — a Constitution that would permit the President to use his powers to violate the laws for corrupt and self-interested reasons.
Among the better known signers of the rebuttal: Harvard Law professor Laurence Tribe, former U.S. Attorneys Harry Litman and Joyce Vance and former Obama White House ethics czar Norm Eisen. The letter was coordinated by Protect Democracy, a watchdog group.
The scholars’ letter argues that the Constitution’s requirement that presidents “take care that the Laws be faithfully executed” precludes the kind of sweeping arguments Trump private lawyers John Dowd and Jay Sekulow made in a 20-page January letter to special counsel Robert Mueller. The Trump attorneys’ missive was first published Saturday by The New York Times.
“Congress has enacted obstruction of justice statutes that prohibit any person from acting ‘corruptly’ to interfere with federal criminal investigations,” the law professors wrote. “Whatever a President may have been able to do in the absence of such statutes, Congress’s judgment that obstruction of justice is prohibited binds the President.”
“The federal obstruction laws, with their bar on corruptly-motivated actions, apply whether the president obstructs an investigation through firing officials leading it, shutting down the investigation, ordering the destruction of documents, or dangling or issuing pardons to induce witnesses to impede the investigation. Just as the President could not use otherwise lawful firing powers in exchange for a bribe without running afoul of federal bribery laws, he is not free to exempt himself from the application of the obstruction of justice laws,” the professors wrote.
The legal scholars argue that Trump could not fire Mueller or pardon himself if Trump’s goal was, in essence, to save his own hide. It is unclear from the letter under what circumstances, if any, the scholars believe a self-pardon would be valid.
“These structural checks against abuses typical of monarchy further elucidate the Founders’ vision — seen in the Oath and Take Care Clause — of a chief executive bound to act with care and fidelity for the benefit of the country, not himself personally,” the professors added.
The professors did not direct their rebuttal to Trump’s private attorneys, but to White House counsel Don McGahn and a recent addition to McGahn’s office, Emmet Flood.