Andrew Kent is Professor of Law at Fordham University School of Law. He teaches and writes about constitutional law, foreign relations law, federal courts and procedure, national security law, public international law and professional responsibility.
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Democratic candidates for president have spent relatively little time discussing Justice Department independence on the campaign trail—in contrast to the first post-Watergate presidential election, when Jimmy Carter made rule-of-law reforms a major campaign issue.
The extent to which federal obstruction of justice statutes apply to the president, especially when concerning actions facially within the office’s powers under Article II, has been hotly contested at least since President Trump fired FBI Director James Comey in May 2017.
An important debate is happening at Lawfare and elsewhere about Special Counsel Robert Mueller’s application of the obstruction of justice statutes to conduct by President Trump. Jack Goldsmith argues that Mueller’s analysis of the obstruction statutes does not stand up to close scrutiny. Benjamin Wittes argues that it does.
Writing here at Lawfare in the early days of the Trump administration, Benjamin Wittes and Quinta Jurecic zeroed in on a central dilemma of this presidency: What happens when the occupant of the office is unable to sincerely and credibly swear the constitutional oath, required by Article II, to “faithfully execute the office of the President of the United States”?
I appreciate Robert Litt's response to my recent Lawfare piece, which raised the possibility of Congress giving the FBI independence from presidential control by means of statutory for-cause limits on removal of the director.
Although Christopher Wray seems like a reasonable choice to lead the FBI, appointing a decent new director will do little to cure the terrible damage done by President Trump’s dismissal of James Comey in the middle of his ten-year term because Trump disliked the FBI’s pursuit of the Russia investigations.
During a back-and-forth on Lawfare with Steve Vladeck a few months ago, I suggested that Hernandez v.