TPM - Marshall - "The Constitution Looks Like Trumps Only Hope" [View all]

[NRaleighLiberal]

http://talkingpointsmemo.com/edblog/the-constitution-looks-like-trumps-only-hope#more-1065471

By JOSH MARSHALL Published JUNE 18, 2017 9:36 PM

Today we are apparently having a discussion about whether the President is in fact under investigation. Or perhaps it’s better to say, Trump’s lawyers (or his TV lawyer, legal activist Jay Sekulow) are having this discussion since no one else seems to have any question that he is. What makes this discussion so weird is that not only does the President appear to be the subject of an investigation but as a factual matter there’s almost no question that he’s guilty. As far as I can see, the real question isn’t factual but rather constitutional.

big snip - important last paragraphs - read it all at the link

The real question is constitutional. The President is sui generis in our system. The President isn’t above the law but the law operates with a sitting President in unique ways. He has the statutory right to fire the FBI Director at his discretion, something no one else has the authority to it. He doesn’t need a reason. Can the President be guilty of obstruction for exercising an authority he is entitled to exercise? I would say the answer is yes, for a number of reasons. There are plenty of analogues to situations in which a person does not require a reason to act but in which certain reasons for acting are nevertheless prohibited. But my point here isn’t to litigate that question. It is only to point out that this is a question and further that it seems to me that this constitutional question and the unique role of the President is really President Trump’s only hope.

If the question is, did President Trump act to impede or end a legitimate investigation for the purposes of protecting himself or his friends I think his goose is probably close to cooked.

Luckily for him, the constitutional question is real. Indeed, there’s a very real additional question whether a sitting President can be indicted at all or whether impeachment and removal from office (perhaps followed by criminal prosecution) is the sole remedy to presidential crimes.