Op-ed by Curt Levey and Ashley Baker, published in The Hill.
As FBI Director James Comey testified before the Senate on Thursday, recounting his version of a series of conversations with President Trump, senators, reporters and pundits focused on the meaning of Trump's reported words. Was the president merely expressing to Comey a hope or suggestion that he drop the investigation of Michael Flynn and “lift the cloud” of investigation shadowing the Trump administration? Or, was the president explicitly ordering Comey to end the investigations?
Senators engaged in a game of semantics that attempted to uncover Trump’s intentions and how they relate to the various definitions of "obstruction of justice" under federal law. However, notably missing from this debate was a disclaimer that, in the end, definitions and nuances in intention won’t make much of a difference.
If the question is whether Donald Trump broke the law, the precise definition of obstruction hardly matters because the president has virtually unlimited constitutional authority to tell the FBI director how to do his job. On the other hand, if the issue is whether the president should be impeached, legal definitions will also take a back seat.
This first question is largely answered by the first sentence in Article II of the U.S. Constitution, which states, "The executive Power shall be vested in a President of the United States of America." Because all executive power vests in the President, every employee of the executive branch, including the FBI director, is subordinate to the president and exercises power only at the president’s pleasure.
The FBI and its parent agency, the Justice Department, do not constitute a separate branch of government, nor are they independent agencies. They are part of the executive branch and their officials take orders from the president.
At the core of the president's executive authority is enforcement of the nation's laws, which includes investigating, prosecuting and punishing those who break the laws. The president can delegate his prosecutorial power to other officials as he chooses. He can give the FBI director as much or as little direction regarding who to prosecute as he sees fit. No obstruction of justice statute can override this discretion or any other constitutional power of the president.
The only exception is that the president may not order the FBI director or any other official to do something unlawful in the course of an investigation or prosecution, such as destroying evidence, suborning perjury, or bribing a juror. Deciding to forgo prosecution of Michael Flynn, Hillary Clinton, or anyone else is not such an unlawful act, regardless of how much evidence of wrongdoing there might be.
Quite the opposite, prosecutorial discretion is a regular and necessary part of executive authority. FBI officials and federal prosecutors make decisions to end investigations or forgo prosecutions every day, and the president can do the same. Recall that President Obama's controversial executive orders on the handling of illegal immigrants were explicitly grounded in prosecutorial discretion.
Similarly, the controversy over whether Trump asked Comey to confirm his “loyalty” to the president is much ado about nothing. Loyalty is part and parcel of being delegated authority by the president. Political appointees like the FBI director and attorney general are expected to faithfully follow the president's instructions and help to advance his agenda. If Trump asked Comey whether he could loyally fulfill that requirement, his inquiry falls squarely under the president's Article II authority.
Of course, the broad grant of executive authority in Article II tells us what a President can do, not what he should or must do. A wise president will oversee the investigations conducted by the FBI and Justice Department no more than is necessary to fulfill his constitutional obligation to manage the executive branch. Doing otherwise is not unlawful, but it is inefficient, can unnecessarily politicize these agencies, and provides political opponents with ammunition.
Such ammunition matters if the issue leads to impeachment proceedings, where legal definitions of obstruction take a back seat to political considerations. The founding fathers attempted to set out a quasi-legal standard for impeachment, specifying that federal officials may be impeached and removed only for "treason, bribery, or other high crimes and misdemeanors." However, this standard is loose enough to allow impeachment proceedings to function as a largely political exercise that comes down to counting votes.
As described by then House Minority Leader Gerald Ford in 1970, "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history." So, in the end, the biggest threat to Donald Trump's presidency is not his precise state of mind during his conversations with James Comey but, instead, the state of mind of his opponents, many of whom have been threatening to impeach him since the day he was elected.
Does President Trump need to worry about being impeached? The results of the 2018 midterm elections will be far more determinative than any definition of obstruction of justice.