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8 legal experts on whether Trump’s demand for an investigation into the FBI is legal

Spoiler alert: It’s complicated.

President Donald Trump approaches members of the media to speak on former national security adviser Michael Flynn’s lying to the FBI prior to his Marine One departure from the South Lawn of the White House December 4, 2017 in Washington, DC. 
President Donald Trump at the White House in December 2017. 
Photo by Alex Wong/Getty Images

President Donald Trump has demanded that the Department of Justice investigate whether the FBI “infiltrated or surveilled” his campaign for political purposes.

The decision, presumably, was a response to reports over the weekend from the Washington Post and New York Times that the FBI had an informant meet with three Trump advisers during the 2016 campaign. Trump’s demand is being taken seriously by the Justice Department, and the inspector general has now expanded its investigation to include the questions raised by Trump.

This could eventually force a clash between the DOJ and the president, especially if Trump continues to use his power to influence or impede the special counsel investigation into Russia’s meddling in the 2016 presidential campaign.

At the moment, two legal questions immediately present themselves. First, does Trump have the authority to order an investigation like this, particularly if the goal is to discredit a separate investigation into his own campaign? Second, does this constitute obstruction of justice?

To get answers, I reached out to eight legal experts. Their full responses, edited for clarity and style, are below.

Peter Shane, law professor, Ohio State University

A presidential order, even if otherwise lawful, can amount to obstruction of justice if it “corruptly . . . influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law.” Proving beyond a reasonable doubt that an otherwise lawful order is corrupt, however, may not be easy.

But whether or not Trump’s “demands” are criminal, they are part and parcel of an unprecedented attack by a sitting president on the law enforcement apparatus of his own administration. Trump’s apparent belief in his personal entitlement to direct that law enforcement resources give priority to his own political ends is antithetical to the rule of law.

Along with his habitual lying, his assaults on the press, his recklessness with regard to the intelligence community, his seeming indifference to the competence and integrity of White House staff and Cabinet members, and his targeting of specific firms and individuals for threats and ridicule — his demands for political investigations weaken our democracy and undermine some of our most critical national institutions.

Jessica Levinson, law professor, Loyola Law School

President Trump has the power to order an investigation but not an outcome to that investigation. And that, of course, is what he is really getting at here. President Trump is not asking for a searching and thorough review of all of the relevant facts. Instead, it appears that he is asking for a specific conclusion. If there is an investigation and it fails to come to the conclusion he wants, he will no doubt call that conclusion more “fake news.”

I think it’s not a sure bet that calling for an investigation amounts to obstruction of justice. Calling for a specific conclusion to the investigation could arguably get you closer to obstruction of justice, but here, President Trump has not explicitly done that, again even though it seems clear that is his intent.

When it comes to obstruction of justice cases, there is the matter of proving that President Trump possessed a corrupt intent when ordering this investigation. That can, particularly with respect to President Trump, be difficult to prove. He could argue he was honestly looking for more facts into this matter.

And of course all of this is playing out against the backdrop of the reality that special counsel Robert Mueller and Deputy Attorney General Rod Rosenstein both likely believe that regardless of whether they uncover any criminal conduct, a sitting president cannot be indicted. So the issue of whether President Trump’s conduct could give rise to a charge of obstruction of justice is a legal question, but one that is important for our political branch, not our judicial branch.

Bob Bauer, law professor, New York University

President Trump is now moving toward an active test of a theory that his lawyers have been putting out for some time: that he is in full control of the federal law enforcement apparatus and that he may direct it as he chooses, and his motives are irrelevant.

He has held back until now, and one can guess at the reasons. Maybe his lawyers persuaded him that Mueller would wrap up quickly and he would be cleared, or perhaps he was convinced for a time that he would make matters worse by actively intervening.

All along, however, his legal team has insisted that he cannot be indicted for obstruction, since they claim that he can redirect or terminate an inquiry at will as a core exercise of his constitutional authority. His “official” demand for an investigation into the investigation, in an ongoing case that involves him, is his first action consistent with his constitutional claim.

It is a claim lacking in merit: an extreme assertion of presidential immunity. And if Trump is wrong, then this step only exacerbates his vulnerability to an obstruction charge built on other facts, such as whatever complete story will emerge about his firing of James Comey and his bullying of the attorney general.

Jens David Ohlin, law professor, Cornell University

No president, whether Trump or anyone else, should be meddling in the Department of Justice when it comes to investigations pertaining to the president and his associates. This intervention is particularly worrisome because he is asking the government to investigate its own investigation of his campaign.

It would be different if some member of the campaign had simply filed a complaint with the DOJ over these issues. But this is far different because Trump has made clear on Twitter that he is using his Article II authority to “direct” the DOJ to investigate this matter.

He’s on both sides of this equation — supervisor of the DOJ and a potential subject of its investigation — and that doesn’t seem to chasten his behavior at all. But it should concern anyone who believes that the president is subject to the rule of law rather than above it.

Miriam Baer, law professor, Brooklyn Law School

As an initial matter, there is no Supreme Court case that forbids the president from calling for an investigation of the FBI’s supposed “infiltration” or surveillance of presidential campaign for improper purposes. Moreover, despite the bombastic tone of President Trump’s tweet, it is difficult to label it obstruction because it specifically identifies as its target the FBI’s surveillance for “political purposes.”

In other words, at least on its face, Trump’s tweet restrains itself to calling out surveillance that was undertaken for improper reasons. Thus, the most one can say about yesterday’s tweet is that President Trump — by demanding an investigation personally, in the midst of a tweet storm — is transgressing important norms of prosecutorial independence. But that’s nothing new.

In context, Rod Rosenstein’s almost immediate response — that the matter has been referred to the DOJ’s inspector general (IG) — appears to be an astute strategic move. The inspector general is already investigating other related matters, such as the FBI’s surveillance of Carter Page, so it certainly makes sense for the IG’s office to take this issue up as well — even if there is nothing to it.

Joshua Dressler, law professor, Ohio State University

What Trump is demanding, as far as I am aware, is unprecedented, and it is certainly peculiar. But I don’t believe that this decision, by itself, constitutes obstruction of justice — that could change if additional measures are taken. It does, however, constitute political meddling, but no more at this point.

Christopher Slobogin, law professor, Vanderbilt University

While the president can order such an investigation, the possibility that the FBI illegally infiltrated his campaign is something the DOJ would presumably want to investigate in any event, for the same reason it is already investigating whether the campaign was subjected to an illegal wiretap.

I don’t see how this can be obstruction of justice. It may be an intentional attempt to muddy the waters, but it shouldn’t have any impact on any legitimate investigation into the Trump campaign. And if there was collusion with Russia or some other malfeasance by the campaign, the fact that it might have been discovered by an FBI mole, illegal or not, will not prevent criminal charges or impeachment.

Ciara Torres-Spelliscy, law professor, Stetson University

The DOJ has traditions and norms that keep it independent of any president. The closest historical analogy of a president doing hands-on meddling with the DOJ was President Nixon. Nixon was never held to account for his actions, however, and President Ford eventually granted him a full pardon.

The interference by President Trump with DOJ asking for an investigation into his own presidential campaign presents even more conflicts of interest than President Nixon’s intervening on behalf of a political donor. Whether this rises to a level of obstruction of justice is complicated because that crime is one of intent. If President Trump is asking for this investigation with the intent of disrupting the special counsel’s ongoing investigation into the Trump campaign in 2016, then this may well be criminal obstruction of justice.