The Manhattan Contrarian asks a good question:
[W]hat is the possible “obstruction of justice” here? That Trump asked Comey to go easy on Michael Flynn? Let’s take the worst possible case: suppose that Trump directly ordered Comey as follows: “I order you to drop the investigation of Flynn right now and to transfer everyone working on it to other tasks.” Can that possibly be an obstruction of justice, given that the prosecutorial discretion function of the government belongs to the President?
The traditional “independence” of the FBI is, I take it, the basis for claiming that “interfering” with an investigation can constitute obstruction, even though the president has the constitutional power, and duty, to direct the Department of Justice.
Those arguing that direct exercise by the President of the executive’s prosecutorial discretion function can theoretically constitute “obstruction of justice” uniformly cite supposed “rules” or “protocols” of the Justice Department that set up a kind of a wall to insulate the prosecutorial function from political influence. There’s certainly nothing in the Constitution about this, nor in the laws that I can find, nor even in regulations adopted via the Administrative Procedure Act. Looking around to try to find the basis for this extra-constitutional principle, I find this February 17 article by Jane Chong at Lawfare. Chong traces the current protocol for Justice Department independence from presidential interference to a 2009 memo written by then AG Eric Holder. Hey, current AG Sessions hasn’t officially revoked the memo yet! And so now a memo of the prior AG is to be the basis for a criminal investigation of the President of the United States?
The Contrarian points out that if blocking a criminal prosecution by DOJ constitutes obstruction of justice, President Obama should have been in the dock:
So, if exercising the prosecutorial discretion function to fail to prosecute an obvious crime for blatantly political purposes can be “obstruction of justice,” can there be any more clear-cut example of same than Eric Holder’s dropping of the prosecution of New Black Panther Party members for their voter intimidation scheme in 2008 in Philadelphia? From Fox News, June 30, 2010:
J. Christian Adams, now an attorney in Virginia and a conservative blogger for Pajamas Media, says he and the other Justice Department lawyers working on the case were ordered to dismiss it. “I mean we were told, ‘Drop the charges against the New Black Panther Party.'”
Did Holder take orders from President Obama in deciding to drop that prosecution? The Justice Department stonewalled production of emails between Justice and “high-level Obama political appointees” in the White House. So we will never know the answer to the question. But in any event, the matter was treated as a political issue — and appropriately so. I never saw anyone suggest that Holder — let alone Obama — could be prosecuted for “obstruction of justice” for declining to charge, no matter how blatant the crime and no matter how political and self-serving and baseless the decision not to charge.
The Contrarian finds an analogy to the present situation in the politically-motivated indictment of Governor Rick Perry for exercising his constitutional veto power in a manner the Democrats didn’t like:
In 2014, the Travis County, Texas (that’s the county where Austin is located) prosecutor charged Perry with the crime of “misuse of government funds” for [exercising his power under the Texas constitution to veto an appropriation of money by the legislature to the office of an official with whom he had clashed.]
From Volokh’s summary of the Texas court opinion (mostly a quote of the opinion itself):
“The [Texas] Constitution does not purport to impose any restriction on the [governor’s] veto power based on the reason for the veto, and it does not purport to allow any other substantive limitations to be placed on the use of a veto.” Therefore, “The Legislature cannot directly or indirectly limit the governor’s veto power. No law passed by the Legislature can constitutionally make the mere act of vetoing legislation a crime.” And other state courts were right to say that “courts may not examine the motives behind a veto or second-guess the validity of a veto.”
Hard to see how that same logic does not apply to a prospective prosecution of Trump for exercising the prosecutorial discretion function to decline to prosecute, or the general executive function of firing people.
Meanwhile the madness continues. Am I the only one in the country who thinks that the President is entitled to have a Justice Department and an FBI who work for him and are not engaged in a constant guerrilla war to undermine the duly elected executive and his administration?
No, you’re not. I even think the president is entitled to a Department of Justice and an FBI that work loyally for him.