The obstruction of justice statute as a check on presidential power

Almost without anyone noticing, a group of obscure statutes, mostly from the nineteenth century, have become, in the hands of the FBI and Justice Department, a significant check on presidential power. Don’t believe me? Consider our last nine presidents.

1. Nixon. Resigned after articles of impeachment drafted by House Judiciary Committee allege obstruction of justice.

2. Ford. Pure as the driven snow.

3. Carter. As innocent as the morning dew.

4. Reagan. Allegations (never proven but investigated) that he engaged in obstruction of justice in connection with the Iran-Contra scandal. Aides investigated, charged, and (in a few cases) found guilty (though rescued in various ways).

5. H.W. Bush. No investigation; but a plausible claim has been made that by pardoning Iran-Contra defendants, Bush blocked the investigation into his own role.

6. Clinton. Impeached for obstruction of justice; later sanctioned for contempt of court, based on what was effectively obstruction of justice.

7. W. Bush. FBI investigated Bush administration’s firing of U.S. attorney in New Mexico, based on obstruction-of-justice argument that it retaliated against him for failing to indict a Democratic state elected official before an election.

8. Obama. Clean as a whistle. (Or was he? Did he obstruct justice by publicly declaring that Hillary Clinton’s use of private email servers did not endanger national security. You be the judge. But my criterion is whether there was an official investigation.)

9. Trump. I would crash my server if I tried to describe all of his actions that would qualify as obstruction of justice based on these precedents. But it is worth mentioning that the public humiliation of Sessions counts as obstruction of justice, to the extent they are intended to spur him to get rid of or constrain Mueller, and also leaks, reported just today, suggesting that the president plans to fire Sessions. Also, if Trump pushes the Justice Department to investigate Comey and Clinton, yes, that too, to the extent that Trump hopes to block investigations into his Russia ties, or to retaliate against political opponents, as Daniel Hemel and I argue in Slate.

That’s 5 to 7 of 9 presidents (or their aides) embroiled in an obstruction of justice scandal, depending on how you define “scandal” (I’m inclined to include H.W. Bush and exclude Obama, but won’t insist on this.)

And also see our latest paper, which goes into more detail.