Donald Trump’s legal defense team have responded to the Russia scandal in recent months by arguing, repeatedly and in public, that the president and his campaign didn’t collude with Putin’s government during last year’s attack, and that the president didn’t obstruct justice as the investigation has unfolded.
The new line from Trump World is that collusion isn’t a big deal and the president is, as a matter of law, incapable of obstructing justice.
On the first point, Jay Sekulow, one of the president’s prominent private attorneys, told the New Yorker that collusion between the Trump campaign and Russia, if it happened, would be legally permissible. “For something to be a crime, there has to be a statute that you claim is being violated,” Sekulow said. “There is not a statute that refers to criminal collusion. There is no crime of collusion.”
On the show last night, former White House Counsel Bob Bauer described this argument as a “fantasy,” adding, “There certainly is a statute that prohibits an American political campaign from essentially establishing a political alliance with a foreign government to win a presidential election, and the suggestion that that’s not a crime I think is simply, flatly wrong.”
As for obstruction-of-justice allegations, John Dowd, who’s helping lead Trump’s legal defense, told Axios that a president “cannot obstruct justice” by virtue of the fact that he’s the nation’s chief law-enforcement official. I thought Dowd might try to walk that back, but in an interview with USA Today, he doubled down.
Trump has denied that he asked Comey to drop the investigation. But his chief lawyer, John Dowd, suggested Monday it wouldn’t even matter if he had — because a president cannot obstruct justice by telling the FBI how he hopes a criminal investigation will be resolved.
“He is the chief law enforcement officer of the United States,” Dowd said in an email to USA TODAY. “He has more power and discretion on that matter that DOJ and FBI put together. He cannot obstruct himself!”
There are three angles to this that are worth keeping in mind.
First, legal scholars and experts in constitutional law tend to think it’s ridiculous to argue that Donald J. Trump is somehow above the law and that it’s an institutional impossibility for a president to obstruct justice. After all, Nixon and Clinton both faced articles of impeachment on this point.
Second, the implications of such an argument are more than a little alarming. Matthew Miller, a former Justice Department spokesman and an MSNBC analyst, told the Washington Post‘s Greg Sargent yesterday, “Dowd is basically arguing that as the chief law enforcement officer, Trump has the authority to block investigations into himself, his allies and into his friends, and nothing he does can be construed as obstruction of justice.”
And third, something appears to have changed Team Trump’s legal posture very recently. For months, the president’s lawyers were fully invested in the no-collusion/no-obstruction argument. Now, however, without explanation, these same lawyers want Americans to believe collusion is permissible and obstruction is impossible.
It’s almost as if Trump’s attorneys have reason to believe the president is guilty and so they’re scrambling to argue that his misdeeds shouldn’t be seen as important.
Put it this way: if Trump World was still certain that the president never obstructed justice, and his political operation never cooperated with a foreign adversary during its attack on the United States, would Trump’s lawyers be taking this argument to the public?
as a matter of law
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."