President Trump’s lawyers, in a letter released over the weekend, staked out bold the ground that the president can’t commit obstruction of justice in his interactions with the federal law-enforcement apparatus—neither by firing investigators nor by interfering with their performance of their duties. In the letter, written back in January to Special Counsel Robert Mueller and recently leaked to The New York Times, they write that “the President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.”
For understandable reasons, this argument has a lot of people reaching for the smelling salts. It has, after all, overtones of both Richard Nixon’s claim that “when the president does it, that means that it is not illegal” and also of the executive power absolutism that scared a lot of people during the George W. Bush administration.
This may surprise some readers, but I actually don’t think the argument is frivolous. How exactly the obstruction-of-justice statutes interact with the president’s broad powers to supervise the executive branch under Article II of the Constitution is a genuinely difficult question. There is no doubt in my mind that Article II limits to a considerable degree the application of the obstruction statutes to the president when he is acting in his capacity as chief law-enforcement officer of the country.