Can The President Be Criminally Prosecuted For Exercising His Constitutional Duties? Further Thoughts

The "attack leak of the day" is the lead story in today's Washington Post: "Special counsel starts investigating Trump for possible obstruction of justice, officials say."    This time we have no fewer than five anonymous sources ("Five people . . . speaking on the condition of anonymity. . . .").  Really, is there any Democratic Party member or holdover employee in the government at this point who is not engaged in attack leaking against the President?  Of course, attack leaks are just as likely to be complete baloney as to have any truth in them -- as obvious examples, the dozens of attack leaks insinuating that the FBI and national security services were investigating "collusion" between the Trump campaign and Russia have all proven to be completely false, after dominating MSM front pages for months.   

So what is the possible "obstruction of justice" here?  That Trump asked Comey to go easy on Michael Flynn?  Let's take the worst possible case: suppose that Trump directly ordered Comey as follows:  "I order you to drop the investigation of Flynn right now and to transfer everyone working on it to other tasks."  Can that possibly be an obstruction of justice, given that the prosecutorial discretion function of the government belongs to the President?  

Those arguing that direct exercise by the President of the executive's prosecutorial discretion function can theoretically constitute "obstruction of justice" uniformly cite supposed "rules" or "protocols" of the Justice Department that set up a kind of a wall to insulate the prosecutorial function from political influence.  There's certainly nothing in the Constitution about this, nor in the laws that I can find, nor even in regulations adopted via the Administrative Procedure Act.  Looking around to try to find the basis for this extra-constitutional principle, I find this February 17 article by Jane Chong at Lawfare.  Chong traces the current protocol for Justice Department independence from presidential interference to a 2009 memo written by then AG Eric Holder.  Hey, current AG Sessions hasn't officially revoked the memo yet!  And so now a memo of the prior AG is to be the basis for a criminal investigation of the President of the United States

So, if exercising the prosecutorial discretion function to fail to prosecute an obvious crime for blatantly political purposes can be "obstruction of justice," can there be any more clear-cut example of same than Eric Holder's dropping of the prosecution of New Black Panther Party members for their voter intimidation scheme in 2008 in Philadelphia?  From Fox News, June 30, 2010:

J. Christian Adams, now an attorney in Virginia and a conservative blogger for Pajamas Media, says he and the other Justice Department lawyers working on the case were ordered to dismiss it.  "I mean we were told, 'Drop the charges against the New Black Panther Party.'"

Did Holder take orders from President Obama in deciding to drop that prosecution?  The Justice Department stonewalled production of emails between Justice and "high-level Obama political appointees" in the White House.  So we will never know the answer to the question.  But in any event, the matter was treated as a political issue -- and appropriately so.  I never saw anyone suggest that Holder -- let alone Obama -- could be prosecuted for "obstruction of justice" for declining to charge, no matter how blatant the crime and no matter how political and self-serving and baseless the decision not to charge.

But I digress.  There actually are some good reasons to maintain a level of separation between the political forces of the White House and the prosecutorial functions of the Justice Department. Not the least of those reasons is to encourage a degree of confidence on the part of the public that the criminal processes are being used fairly and not for political vendettas.  Maintaining the separation is also thought to be generally good for a president politically, because the voters could hold the President accountable for misusing the prosecutorial function against political enemies.  But notice that those considerations apply minimally, if at all, to a decision not to prosecute somebody.  And in any event, it is purely the President's decision whether he wants to maintain the separation, or alternatively breach it and suffer the political consequences.

For those interested generally in the law of whether it can be a crime when a governmental executive exercises his constitutional powers in a way the other side doesn't like, there is a recent case where these issues were considered extensively.  The case arose in the state of Texas, and involved the prosecution of then-governor Rick Perry (now he is the Secretary of Energy) over alleged crimes that arose when Perry exercised his power under the Texas constitution to veto an appropriation of money by the legislature to the office of an official with whom he had clashed.  In 2014, the Travis County, Texas (that's the county where Austin is located) prosecutor charged Perry with the crime of "misuse of government funds" for committing this act.  I covered the subject in a post titled "The Perry Prosecution And Giving Prosecutors The Benefit Of The Doubt."   

In my post I called the Perry prosecution "blatantly outrageous overreaching."  But Perry continued under the cloud of the prosecution until his case reached the Texas Court of Criminal Appeals in 2016.  (This is Texas's highest court for criminal matters.  In effect they have two Supreme Courts.)  That court threw out the prosecution.  Although I did not do a follow up post on the Perry case when it was thrown out, Eugene Volokh of the Volokh Conspiracy did.  Eugene also submitted an amicus brief in the case in support of Perry -- a brief joined by a who's who of law professors.  You will not be surprised that Alan Dershowitz was one of them.  From Volokh's summary of the Texas court opinion (mostly a quote of the opinion itself):

“The [Texas] Constitution does not purport to impose any restriction on the [governor’s] veto power based on the reason for the veto, and it does not purport to allow any other substantive limitations to be placed on the use of a veto.” Therefore, “The Legislature cannot directly or indirectly limit the governor’s veto power. No law passed by the Legislature can constitutionally make the mere act of vetoing legislation a crime.” And other state courts were right to say that “courts may not examine the motives behind a veto or second-guess the validity of a veto.”  

Hard to see how that same logic does not apply to a prospective prosecution of Trump for exercising the prosecutorial discretion function to decline to prosecute, or the general executive function of firing people.

Meanwhile the madness continues.  Am I the only one in the country who thinks that the President is entitled to have a Justice Department and an FBI who work for him and are not engaged in a constant guerrilla war to undermine the duly elected executive and his administration?