Something dangerous has changed in Washington.
One of President Trump’s personal lawyers, John Dowd, is now arguing publicly that a president can’t be prosecuted for obstruction of justice because as the nation’s chief law enforcement officer, the president decides what justice ought to be. In this case, Dowd’s theory is that if Trump decides that his friend Mike Flynn should be immune from prosecution, as president he has the authority to make that happen and no one can interfere.
If Trump decides to shut down an entire criminal investigation into his own administration, even into his own actions, under Dowd’s theory he can do that too, if necessary by firing the FBI director or presumably even the special counsel.
Another of Trump’s personal lawyers, Jay Sekulow, makes a similar argument about possible collusion between the Trump campaign and Russian officials: Even if it happened, there’s nothing that anyone can or should do about it.
“For something to be a crime, there has to be a statute that you claim is being violated,” as Sekulow told The New Yorker. “There is not a statute that refers to criminal collusion. There is no crime of collusion.”
And of course, former Harvard law professor Alan Dershowitz is all over cable TV these days, bolstering both arguments on behalf of Trump, much to Trump’s delight. It is downright uncanny how often Dershowitz’s carefully thought-through, scholarly legal analyses happen to coincide with the fondest desires of cable news bookers. It’s one of those mysteries of the universe.
In short, we are no longer debating whether collusion or obstruction of justice happened, but whether they are legal when carried out by the president. We are debating not the legitimacy of Trump’s actions, but the legitimacy of the investigation into such matters. Furthermore, the legitimacy of those people conducting the investigation is also under all-out assault by the president and his supplicants.
In recent tweets, Trump has attacked the FBI, proclaimed that “its reputation is in tatters — worst in History.” He has claimed that while Flynn was forced to plead guilty to lying to the FBI, Hillary Clinton lied to agents repeatedly and because of partisan bias was allowed to go free. It’s all pretty astonishing. We have a law-and-order president publicly attacking the integrity of the nation’s pre-eminent law-enforcement agency.
Just so it’s clear: We have absolutely zero evidence that Clinton lied to the FBI. There is not even a plausible, fact-based allegation that Clinton lied to the FBI. All we have are some conservatives who very much want to believe that Clinton lied to the FBI, and a president who promises to make such wishes appear to be reality.
They still are not reality.
Overall, Trump has now appointed the head of the FBI, the CIA and the Justice Department, and he still cannot force them to do what he wants because what he wants is against the law. Even Attorney General Jeff Sessions has refused to open an investigation into Clinton, as Trump publicly demands, because he knows that he has no legal grounds on which to do so.
In other words, the institutions of democracy are holding up so far. So far. But if you listen to the arguments being made, if you see where the facts are leading and and watch the pressures being exerted, both publicly and privately, you begin to realize that the real test of their structural soundness has yet to come, and that it is likely to be seismic.