« Cass Sunstein on Jud Campbell on the First Amendment
Michael Ramsey
| Main | Jonathan Adler: Auer Evasions
Michael Ramsey »

12/19/2017

Josh Blackman on the President and Obstruction of Justice
Michael Ramsey

At Josh Blackman's Blog: Obstruction of Justice and the Presidency: Part III.  Here is the introduction:

In  of this series, I concluded that the “president cannot obstruct justice when he exercises his lawful authority that is vested by Article II of the Constitution.” For purposes of either a criminal conviction, or an impeachment trial, I wrote, “the question of whether the president obstructs justice will turn on whether his actions are supported by Article II itself.”

 advanced a framework to understand how the Constitution’s negative limitations on Congress’s powers and positive vestings of power to the president both limit the scope of what can constitute “high Crimes and Misdemeanors.” With respect to the negative limitations, if the Constitution limits Congress’s power over certain areas—such as the religious test clause or the free speech clause—Congress lacks the power to define “high Crimes” on those bases. In a similar fashion, because the Constitution disables the president from, for example, violating a person’s life, liberty, or property, without due process of law, such conduct could give rise to “high Crimes.” On the flip side, when the Constitution grants the president and vice president certain positive powers, Congress cannot then define “high Crimes” on those bases.

This third installment will consider how “obstruction of justice” can serve as the predicate for “high Crimes,” with respect to the impeachments of Presidents Richard Nixon and Bill Clinton. Finally, this entry will discuss how the positive vestings of power over foreign affairs in President Trump, combined with his absolute power to remove a principal officer, could serve as the basis for his defense against obstruction of justice charges, either in a criminal court or a court of impeachment.