Obstruction of justice is a serious crime that can result in a prison sentence. So what is obstruction and can a sitting president be charged with the crime of obstructing justice? Given the accusations against President Trump and the questions raised by the Mueller Report, this issue has never been more relevent. Professor Bennett Capers of Brooklyn Law School explains.
Bennett Capers is a professor at Brooklyn Law School where he focuses on evidence, criminal procedure, and criminal law. He is a former federal prosecutor.
The October 16, 2000 Department of Justice memo summarizing the policy that the DOJ should not criminally indictment a sitting U.S. president.
The Mueller Report details the investigation into possible charges of obstruction of justice by President Trump involving the investigation into Russian interference into the 2016 election.
Bennett Capers: So can a president be guilty of obstructing justice? Before I answer that question or attempt to answer that question, allow me to introduce myself. My name is Bennett Capers, I am a professor at Brooklyn Law School where I teach courses related to criminal law and criminal procedure. I’m also a former federal prosecutor. So can a president be prosecuted for obstructing justice? The answer is actually a little bit complicated. We have to look at a couple of things (1) what is obstructing justice and (2) can the president be prosecuted for obstructing justice? Obstruction of justice is actually very open-ended— simply any attempt to influence or impede or obstruct a criminal investigation or prosecution. The main thing with obstruction is that is has to be done corruptly so the person has to be acting with the intent to impede or obstruct an investigation. The more complicated issue I think is whether a president can be prosecuted for obstructing justice. The consensus seems to be among legal scholars and constitutional scholars that the answer is "no" and that’s because a president is sort of above the law. A president while that person is president actually cannot be prosecuted criminally for any offense. In fact, the thinking is that’s why we have impeachment. So if you recall when President Nixon, for example, even though there were conversations about obstructing justice that was in the context of the Articles of Impeachment when the House approved Articles to impeach him and as I’m sure you know Richard Nixon resigned before the impeachment proceedings could go further. Interestingly, while the sitting president cannot be prosecuted for any crime including obstruction of justice, the general consensus is once that president is no longer a sitting president, that former president can be subject to liability criminally. I’m Professor Capers. Thanks for watching TalksOnLaw.