Where does the U.S. justice system draw the line between the powers of the president to fire and FBI director/pardoning those under investigation by the FBI and obstruction of justice. What has a US President typically/traditionally been able to get away with without being impeached?
Is Alan Dershowitz correct on his interpretation of the constitution or are the powers of the presidential powers of pardoning subject to debate?
I look forward to your feedback.
“Alan Dershowitz Says Trump Cannot Be Guilty of Obstruction While Exercizing His Constitutional Authority”
WAG: As a legal matter, he probably can’t be prosecuted. As evidence for possible impeachment, it is up to HR to decide and, in any subsequent trial, up to the senate.
It should be noted that other highly credentialed people disagree with Dershowitz about this.
As a practical matter though, you have to wonder if a responsible prosecutor would try to go after the POTUS based on an untested and possibly invalid legal theory. So it’s possible that Dershowitz’ view may carry the day merely by dint of his expressing it.
There are very few limits on the President’s pardon power: It only applies to federal crimes, and he can’t use it in cases of impeachment. Anything else is fair game, and since the power is laid out in the Constitution, it’s not even possible to impose any further limits on it.
That said, while the President certainly can pardon people under investigation, it might not be a good idea for him. Once a person is pardoned, they are no longer at risk of self-incrimination, and so they can’t hide behind the Fifth Amendment any more.
ISTR an early scotus case addressed the lack of restraint on the power of presidential pardons. The final ruling mentioned that the limitless nature of this power is intentional, beneficial, and had a LONG tradition going back through to monarchs, popes, and the like.
The Presidents takes an oath to “faithfully execute the Office of President of the United States” and to “preserve, protect and defend the Constitution of the United States”. The Constitution than defines what his duties are: “He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”
So if the President fires an official (or take any other act pursuant to his power of office) the legal standard should be did the firing advance or hinder the execution of the law?
Based on my reading of these two Lawfare articles, the basic message is that the President is held by the Constitution to act faithfully in the interest of the nation and, moreover, to be an “honorable” person (it’s an 18th century document, after all). Hiding an attack by a foreign nation on the country, out of fear that it might make him look bad in some way, is pretty well within the realm of being an impeachable offense by the rules of the gig as laid out. Obviously, it’s up to Congress to make that determination, but there’s sufficient grounds to do so if they believed that this is what is happening.
You may have mixed together two different subjects.
Can the President be prosecuted for obstruction of justice? The most common opinion/answer I find is probably not.
Is impeachment part of the “US justice system?” I don’t think so, but it doesn’t really matter.
Can the President be impeached for exercising a power nobody disputes he has? Yes, of course. Congress states that he did it for X reason and that that consists of an abuse of said power.