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Trump’s lawyers say Mueller can’t touch him. Is the president really above the law?

Erwin Chemerinsky, Berkeley Law dean | June 12, 2018
Robert Mueller

Robert Mueller

A flurry of statements by President Donald Trump and his lawyers are stunningly reminiscent of a comment attributed to Louis XIV: “L’etat, c’est moi” — “The state? I am the state.”

In early June, a memorandum from Trump’s lawyers to special counsel Robert Mueller became public and it contended that a president cannot commit the crime of obstruction of justice or be compelled to testify before a grand jury. This was quickly followed by presidential lawyer Rudy Giuliani and Trump both proclaiming that a president can pardon himself. Trump then sent a tweet that the Mueller investigation is unconstitutional.

All of these are claims about the law and all are simply wrong. But what makes them particularly troubling is that taken together they are an as
tounding assertion by the president and his lawyers that he is above the law.

Consider each of these claims. First, there is the assertion that the president cannot commit the crime of obstruction of justice because he is ultimately responsible for all criminal prosecutions. But the problem with this argument is that the conclusion does not follow from the premise: Even though the president is responsible for criminal prosecutions, he can commit obstruction of justice if he misuses that authority.

For example, imagine that a member of the president’s family is under federal criminal investigation. If the president were to order the FBI and federal prosecutors to stop the investigation, that would be the crime of obstruction of justice. In fact, President Richard Nixon resigned from office when the evidence of his obstruction of justice was revealed with the disclosure of a taped conversation in which he told the FBI not to investigate the Watergate break-in because it was a CIA matter.

Second, the law is clear that a president can be forced to comply with court orders and to testify. In United States v. Nixon (1974), the Supreme Court unanimously held that President Nixon had to comply with a court order and turn over the Watergate tapes. The court emphatically rejected Nixon’s claim that the court could not issue such an order to a sitting president. Likewise, the courts ruled that President Bill Clinton had to submit to a deposition and answer questions under oath. It was his lies during this testimony about his sexual relationship with Monica Lewinsky that led to his impeachment.

Third, there is no authority to support the claim by Trump and Guiliani that a president can pardon himself. Of course, there is no case saying that a president cannot do so because no president ever has tried to do such a thing. Past presidents accused of federal crimes, such as Nixon and Clinton, did not have the audacity to suggest such a power.

In 1973, Justice Department lawyers considered the issue and wrote a memo concluding that a president cannot pardon himself due to the “fundamental rule that no one may be a judge in his own case.” Throughout history, in this country and others, the pardon power always has been understood to give one person the authority to give clemency to another.

Finally, Trump is wrong in his claim that having a special counsel is unconstitutional. On June 4, Trump tweeted, “appointment of the special counsel is totally UNCONSTITUTIONAL!” But in Morrison v. Olson, in 1988, the Supreme Court, in a 7-1 decision, upheld the constitutionality of having an independent counsel investigate alleged wrong-doing by the president or high level executive officials. The court stressed the importance of having such investigations done by a person independent of the president.

That case involved a statute, no longer in existence, that limited the president’s ability to fire a special prosecutor. The court rejected the argument that having an independent special prosecutor impermissibly infringed on the president’s power to control criminal prosecutions. Mueller, of course, is even less independent in that Trump could order Deputy Attorney General Rod Rosenstein to fire Mueller and replace Rosenstein if he refused to follow this order.

If this were an exam on the law, Trump and his lawyers would get a failing grade. But what makes these claims so disturbing is that they all are ways of saying that the president believes that the law just doesn’t apply to him.

That, though, is the characteristic of a dictatorship, not a constitutional democracy. Under the latter, the most basic element of the rule of law is that no one, not even the president, is above the law.

Cross-posted from the Sacramento Bee

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