Eric Posner: "The Motive Question and Obstruction of Justice"

The motive question and obstruction of justice

A number of people have argued that President Trump could not be convicted of the crime of obstruction of justice for firing James Comey, whatever the facts ultimately show about Trump’s motive. David Rivkin and Lee Casey, in today’s Wall Street Journal, are the latest to make this argument. In their words:

Mr. Trump’s critics claim that subjecting the president’s actions to scrutiny as potential obstructions of justice is simply a matter of asking judges to do what they do every day in other contexts—determine the purpose or intent behind an action. This is also wrong. The president is not only an individual, but head of the executive branch. Separating his motives between public interests and personal ones—partisan, financial or otherwise—would require courts to delve into matters that are inherently political. Under Supreme Court precedent stretching back to Marbury v. Madison (1803), the judiciary has no power to do so. And lawmakers enjoy an analogous immunity under the Speech and Debate Clause.

Yet Rivkin and Casey contradict this claim—that judges are not permitted to inquire into the motives of the president—a few paragraphs later. There, they agree that the president can commit the crime of bribery. Like many people, they don’t think the president can be tried for bribery until after he leaves office, but that is not the issue here.

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