(Written with Daniel Hemel.)
The President orders the FBI Director to halt an investigation of the President’s former aide. The Director refuses. The President responds by:
A1. Firing the Director.
A2. Taking a fifty out of his billfold and offering it to the Director as a bribe.
A3. Pulling out a pearl-handled Smith & Wesson and shooting the Director in the forehead.
Put aside the question of whether the President can be indicted while in office. To fix intuitions, imagine that the actions come to light the day after he leaves the White House: the question is whether to charge him with a crime now that he is a private citizen.
We think almost everyone will agree that A2 and A3 are crimes. Alan Dershowitz argues that the President has the constitutional authority to order the FBI Director to end an investigation, but we are nearly certain that even Dershowitz would agree that the President must not violate the statutory prohibitions against bribery and murder along the way. It is worth noting, however, that these statutes constrain the president’s enforcement discretion—a fact that does not render them invalid.
Now consider a second scenario. The President’s former aide, who is under FBI investigation, offers the President $100 if the President stops the probe. The President then orders the FBI Director to halt the investigation. The Director refuses. The President responds by:
B1. Firing the Director.
B2. Taking a fifty out of his billfold and offering it to the Director as a bribe.
B3. Pulling out a pearl-handled Smith & Wesson and shooting the Director in the forehead.
We think almost everyone will agree that B1, B2, and B3 are all crimes. Again, the President has the constitutional authority to order the FBI Director to end an investigation, but he commits a felony if he exercises that authority in order to procure a payment for himself.
Now consider a third scenario. The President orders the Attorney General to stop prosecuting nonviolent drug offenses. The AG refuses. Again, the President responds by:
C1. Firing the AG.
C2. Taking a fifty out of his billfold and offering it to the AG as a bribe.
C3. Pulling out a pearl-handled Smith & Wesson and shooting the AG in the forehead.
C2 and C3 are again clearly crimes. But we think that now, almost everyone would agree that C1 is not.
What makes B1 and C1 different?
The distinction lies in the motive. Congress has enacted several obstruction of justice statutes that make it a crime to “corruptly” influence, obstruct, or impede a proceeding, or to attempt to do so. In B1, the President acts corruptly out of a desire to procure a bribe. In C1, the President presumably acts because he thinks that the prosecution of nonviolent drug offenders is a misallocation of law enforcement resources. Whether one agrees or disagrees with that view, it is difficult to argue that the President in C1 is corrupt.
A1 is the harder case—indeed, the only one of these scenarios that strikes us as difficult. It is also the case closest to the one at hand. Is it more analogous to B1 (clearly a crime) or to C1 (clearly not)? Again, the fact that the President has the constitutional authority to order the FBI Director to end an investigation does not help us answer the question, because firing the FBI Director in order to end an investigation can be a crime nonetheless (B1).
Much depends on why the President wants to end the investigation of his former aide. If he thinks that the investigation is a gross misallocation of FBI resources that threatens to divert the bureau from its crime-fighting and counterterrorism responsibilities, then A1 begins to look like C1 (not a crime). But what if he wants to end the investigation because he is worried it might bring to light embarrassing information about himself, his family members, or his political associates? Then, A1 begins to look more like B1 (criminal indeed).
The apparent fact that President Trump fired the FBI Director in order to halt an investigation of the President’s former aide does not tell us whether the President has committed a crime. Clearly, some actions that the President might take in order to halt an FBI investigation would indeed be criminal (bribery, murder). And almost as clearly, there are some circumstances in which a President who fires the FBI Director in order to halt an investigation would be guilty of a crime (B1). But there are also circumstances in which a President who fires a law enforcement official in order to stop an investigation or a prosecution (or thousands of the same) would not be a criminal. Senator Howard Baker’s famous question during the Watergate hearings—“What did the President know and when did he know it”?—might be repurposed as: “What did the President do and why did he do it.” At this point, the “why” matters just as much as the “what.”