Andrew McCarthy/NRO

THERE IS NO OBSTRUCTION OF JUSTICE CASE AGAINST PRESIDENT TRUMP

There is no legal obstruction case against President Trump. As we have repeatedly explained, obstruction requires prosecutors to prove beyond a reasonable doubt that a public official acted corruptly in endeavoring to influence or interfere with an investigation. To establish the corrupt mental state, prosecutors must prove that the official knew what he was doing was against the law. 

The president’s actions here, no matter how much one might judge them ham-handed or inappropriate, were not against the law. A president has prosecutorial discretion: He may lawfully shut down an investigation, to say nothing of merely influencing it. And the intelligence services exist to serve the president: He may lawfully terminate any intelligence-collection effort he chooses to. 

In point of fact, Trump did not shut down the investigation of Michael Flynn or the counterintelligence probe of Russia’s meddling in the 2016 election. Since he had the authority to bring these investigations to a screeching halt, he cannot have acted corruptly by taking lesser lawful action. Period. 

The claim that Trump may be guilty of a prosecutable obstruction crime is premised on a legal error – namely, that the FBI and the Justice Department are a separate branch of government, independent of the executive. In fact, they are subordinate to the president. The power they exercise, as inferior officers, is the president’s power. It does not matter whether an FBI director finds it troubling that a president makes suggestions to him about how a case should be handled. The president gets to do that. If the FBI director finds that intolerable, he can resign. The director’s comfort level is constitutionally irrelevant. 

Prosecutorial discretion is part of a continuum of executive police powers that includes the ultimate interference in law-enforcement: the pardon power. No matter how offended we are when a president pardons (or commutes the sentences of) serious criminals, the matter is unreviewable by the courts. The president may not be prosecuted for obstruction of justice over it, even though it seems like a profound obstruction of justice, because the president has the indisputable authority to take the action. 

Prosecutorial discretion is no different. It is simply the beginning of the process rather than the end – i.e., the decision not to investigate a potential crime, rather than, by pardoning it, to create the constructive legal reality that the crime never happened. The powers of prosecutorial discretion and pardon are two sides of the same coin.

McCarthy NRO Article