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12/13/2017

Akhil Amar on the President and Obstruction of Justice
Michael Ramsey

A transcript of Akhil Amar's appearance on Hugh Hewitt's radio show, here: Yale Law School Professor Akhil Amar On Whether A Sitting President Can Be Prosecuted, Indicted Or Even “Obstruct Justice”.

On the first point:

Let’s take the possibility of federal prosecution. Well, the Constitution makes the president the chief executive of the federal government. Prosecution is an executive branch function. And executive branch powers are vested by the first sentence of Article II, the presidential article, in a president. What’s more, and the people in the executive branch basically work for him. That’s why he’s chief executive as to the same way he’s commander-in-chief in the military. You know, he’s the ultimate generalissimo. You say, well, what about Bob Mueller? Bob Mueller, Constitutionally, is what’s called an inferior officer under Article II, Section 2, Paragraph 2, which your audience can look at, because the Constitution is very readable itself. The Constitution says that certain officers can be basically picked by low level officials, but aren’t picked by the president, aren’t confirmed by the Senate. But those officers like Bob Mueller, who wasn’t picked by a president, wasn’t confirmed by a Senate, has to be inferior officers. That’s the word the Constitution uses. Now it’s really hard to be inferior if you’re indicting a president of the United States and possibly undoing a national election. So two different reasons when it comes to federal prosecution, but this can’t happen, because one, the president is the chief executive, and everyone in the executive branch ultimately answers to him, and second, and more pointedly, Bob Mueller is an inferior officer, and he wouldn’t be, he was never confirmed by the Senate, never picked by a president, he would not be inferior if he could do this. And by the way, I not only have Joseph Story on my side on that, I have Justice Scalia also, who said that way back when in a case in the 1980s called Morrison v. Olson. That leaves the possibility of state prosecution. If federal prosecution against an un-consenting president really are unavailing, what about state prosecutions? Here, the basic argument is an argument of federalism, of structure. In a nutshell, we all elect a president. I voted against President Trump, but elections matter. We the people of the United States made a decision, and I wouldn’t want any individual state to be able to undo that election. What’s popular in Massachusetts is unpopular in Alabama, and the vice versa. The president has to represent all of us, and so I wouldn’t want the people of any given state to be able to undo a presidential election. And a state prosecution would involve a local jury, a local grand jury. It would be the part overturning the whole. It would be as if, let’s say, in the 1860s North Carolina could have indicted Abraham Lincoln on some fabricated charge and tried to demand that he go down to the Carolinas for trial or something when he had other things to do, namely win the Civil War.

Agreed as to federal prosecution.  I would say that it's not a matter of an atextual presidential immunity; it's because the President can direct the Justice Department not to prosecute.  I think that is what Professor Amar is saying.  I'm  little less sure on state prosecution.  If the President violates a state law -- for example, murders someone -- what provision in the Constitution requires the state not to prosecute?  Professor Amar says it is a matter of "structure," and perhaps that's right, but that type of structural argument starts getting a little beyond the text for my taste.

As to the second point: 

I’m closer to Alan [Dershowitz]'s view. He doesn’t, I think, when he’s best understood, say that there could never be an obstruction of justice under, you know, where bribery or something else. What he does rightly remind us is frankly the rules are different for presidents, because, for example, the president has the pardon power. The president can decide that he actually doesn’t think, for example, marijuana laws in Colorado should be enforced the same as Barack Obama, or that draft dodgers should be prosecuted the same as Jimmy Carter. So the president has a unique role in the criminal justice system. He’s allowed to actually decide whom he wants as the head of the FBI, and he’s allowed to have enforcement priorities. Focus on A, B and C, and not D, E and F. And so unless one actually has specific evidence of a certain kind of corruption, of bribery or something like that, it’s not enough to merely state oh, he didn’t like Jim Comey, and he didn’t like him because of Comey’s enforcement priorities. The president is allowed to have his own enforcement priorities, and that in and of itself does not amount to obstruction of justice absent some specific evidence of corruption and overt acts. And that’s, I think, Alan’s argument sort of most, sort of carefully reconstructed. So I’m probably closer to Alan’s than my dear friend, Larry Tribe on this.

Agreed (as regular readers know).  This follows from the propositions that (a) the executive power is vested in the President (as Professor Amar says elsewhere) and (b) that the executive power includes prosecutorial discretion (as he says in this passage).

RELATED: At Josh Blackman's Blog, Obstruction of Justice and the Presidency: Part II.  (But part III is going to be the big conclusion).