Recently, it emerged that Pres. Trump’s lawyers have advanced the theory that as the nation’s chief executive officer, the President cannot obstruct justice. The theory is the President has complete authority to start or stop investigations. Rudy Giuliani said the only remedy if the president committed a murder was impeachment. Mr. Giuliani also said the President has the power to pardon himself.
Legal scholars mostly disagree. The bedrock of the U.S. Constitution is that no person is above the law, they point out. Former acting Solicitor General Neal Katyal flatly said the idea that someone could be immune from obstruction of justice died with George III, with a brief attempt at revival by former Pres. Nixon. The opinion of any former Solicitor General, acting or not, carries a lot of weight. Solicitors General represent the U.S. government before the U.S. Supreme Court. Any Solicitor General is considered to be a top flight lawyer. They are the lawyer’s lawyer. Mr. Katyal derided Mr. Giulinai’s suggestion as a “ludicrous legal theory.” If a careful lawyer pokes fun at Mr. Giuliani’s argument, then we can conclude the argument is weak.
The decision in the Paula Jones lawsuit against then Pres. Clinton is instructive. The courts universally found that a sitting President was still subject to the normal civil legal process. Former Pres. Clinton tried to argue that as President, a civil lawsuit should be postponed until his term has ended. He lost at every level of appeal. If civil cases still apply to sitting presidents, it is very likely that criminal legal process will also still apply. The ABA Legal Fact Check noted that in ruling on a subpoena issued to then Pres. Nixon, Chief Justice Warren Burger wrote that yes, a President does enjoy special consideration. But, that special consideration does not include an “unqualified presidential privilege of immunity from all judicial process under all circumstances.” See ABA Bar Journal report.
But, for a president who famously provides his own legal counsel, these legal opinions may not matter.