Constitutional law professor Elizabeth Price Foley spent her Sunday afternoon knocking down the “obstruction of justice” narrative on MSNBC.
The Harvard-educated Foley calmly explained to frustrated MSNBC host Yasmin Vossoughian why President Trump would have been legally allowed to suggest former FBI Director James Comey let go of the probe into former national security adviser Michael Flynn, and why Trump was well within his constitutional authority to later fire Comey.
“If the American people are unhappy with the way Trump acted,” Foley said, “their two options under our constitutional system are to push for impeachment or to vote somebody else into office in 2020.”
“To the extent that people want try to make this obstruction of justice, there’s a million different layers why this is not technically obstruction of justice, either as a statutory matter or a constitutional matter,” Foley said. “But this point particularly about a ‘corrupt intent’ is even worse. Because think about it, the president also has the authority under Article II [of the Constitution] to pardon people, but we don’t say for example that the president can’t pardon a certain person because he has a corrupt intent, he likes the guy he’s known him for a long time so therefore he can’t pardon him.”
“The pardon power like the power to head the investigative, or the rest of the executive branch like the FBI, like the DOJ is a plenary discretionary authority of the president. He can pardon anybody for any reason he wants, corrupt purpose or no, and he can direct the investigation or non- investigation corrupt motive or no,” she added.
“You don’t put discretionary limits on constitutional authority ap and if you do you invite Article III non-elected non-accountable judges to second-guess the president’s authority. You never want to have a constitutional regime that sets up that way. We the people can either not vote the president in or we can impeach him, those are the political pushback mechanisms.”
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