A dangerous argument is now being put forward by some Democratic ideologues: namely that President Trump should be indicted for the crime of obstructing justice because he fired FBI Director James Comey. Whatever one may think of the President’s decision to fire Comey as a matter of policy, there is no legitimate basis for concluding that the President engaged in a crime by exercising his statutory and constitutional authority to fire director Comey. As Comey himself wrote in his letter to the FBI, no one should doubt the authority of the President to fire the Director for any reason or no reason.
It should not be a crime for a public official, whether the President or anyone else, to exercise his or her statutory and constitutional authority to hire or fire another public official. For something to be a crime there must be both an actus reus and mens rea – that is, a criminal act accompanied by a criminal state of mind. Even assuming that President Trump was improperly motivated in firing Comey, motive alone should never constitute a crime. There should have to be an unlawful act. And exercising constitutional and statutory power should not constitute the actus reus of a crime. Otherwise the crime would place the defendant’s thoughts on trial, rather than his actions.
Civil libertarians, and all who care about due process and justice, should be concerned about the broad scope of the statute that criminalizes “obstruction of justice.” Some courts have wrongly interpreted this accordion-like law so broadly as to encompass a mixture of lawful and unlawful acts. It is dangerous and wrong to criminalize lawful behavior because it may have been motivated by evil thoughts. People who care about the rule of law, regardless of how they feel about President Trump, should not be advocating a broadening of obstruction of justice to include the lawful Presidential act of firing the FBI Director. Such an open ended precedent could be used in the future to curtail the liberties of all Americans.
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