Heard that some are saying that the President cannot be guilty of obstruction of justice by definition? Professor Rick Pildes disagrees, based on a SCOTUS decision, on Lawfare:
The Ethics in Government Act was created out of the recognition that the President should be taken out of the process of controlling investigations and prosecutions that involved potential crimes by himself or high-ranking government officials—i.e., close aides of the President. As the Supreme Court thought was obvious, “Congress, of course, was concerned when it created the office of independent counsel with the conflicts of interest that could arise in situations when the Executive Branch is called upon to investigate its own high-ranking officers.”
The Act created a process that could lead to the appointment of an Independent Counsel for this role, and the entire point of the Act was to insulate the Independent Counsel—and hence the investigation and prosecution of crimes involving the President and his or her top aides—from the President’s complete control. The Act essentially put the powers of the Department of Justice in the hands of the Independent Counsel: it vested him or her with the “full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice [and] the Attorney General.”
Then, to even further ensure that the President not have unfettered control when potential crimes involving himself and his top aides were at stake, the Independent Counsel, once appointed, was wrapped in several layers of additional insulation from presidential control. Thus, the only person who could remove the counsel from office was the Attorney General—and, very importantly, the Attorney General could only do that for limited and specific reasons (“good cause”), such as misconduct in office or inability to perform the counsel’s duties.* If the Attorney General did remove a counsel, the AG had to file a report with Congress and the courts stating the factual basis for this removal. And as yet further protection of the Independent Counsel, the federal courts—which were given the power to reinstate an Independent Counsel who had been illegally removed—would be the ultimate adjudicator of whether any removal was in fact for good cause.
There’s plenty more good detail, but it basically boils down to SCOTUS, back in 1988, deciding that permitting the President unfettered control of federal prosecutions, when those prosecutions involved himself and his aides, was a gaping wound, ready for infestation by the worst sorts of bacteria, once a President of poor character had assumed control; the challenged law, the Ethics in Government Act, was thus permitted to stand.
To my mind, there’s a further problem with assuming the President is immune, and that is to presume the President is ruler supreme. He’s not; he’s the Executive in charge of implementing the laws put forth by Congress, as modulated by the judiciary; to equate him to a monarch is not only repugnant, but a profound misunderstanding of our system of government. He is an elected officer of the government, much as is the Vice President. He nominates various persons for the roles we’ve developed for the government, and gives them direction to implement policy.
Just as it is important that his decisions be challenged in court, so, too, must be his conduct. Granted, nuisance suits are a danger to the country, but investigation by specially appointed counsel in extraordinary circumstance is not only necessary, it should be obvious. This appears to be something overlooked by the Founding Fathers; fortunately, SCOTUS backed up the new law when challenged in 1988.
