Trump lawyer offers new defense of tweet: president ‘cannot obstruct justice’

The attorney for Donald Trump who sought to take the blame for a tweet that could signal the president took part in the obstruction of justice has offered a new defence of Trump’s actions: the president cannot obstruct justice.

“The president cannot obstruct justice because he is the chief law enforcement officer under [the constitution’s Article II] and has every right to express his view of any case,” John Dowd told the Axios website.

Dowd spoke after legal experts voiced surprise and concern over his original claim. On Monday, he said any suggestion the Trump tweet had admitted obstruction of justice, whoever wrote it, would be “an ignorant and arrogant assertion”.

Axios quoted Bob Bauer, a New York University law professor and former White House counsel to Barack Obama, as saying: “It is certainly possible for a president to obstruct justice.

“The case for immunity has its adherents, but they based their position largely on the consideration that a president subject to prosecution would be unable to perform the duties of the office, a result that they see as constitutionally intolerable.”

Under pressure as the investigation by special counsel Robert Mueller into Russian meddling in the election accelerates,Trump said in a tweet on Saturday that he fired Michael Flynn as national security adviser in February “because he lied to the vice-president and the FBI” about his discussions with Russia’s ambassador to the US last December.

Flynn pleaded guilty in court on Friday to lying to FBI agents. Experts told the Guardian that the wording of his plea agreement suggested he may already have been wearing a wire or recording conversations with other figures in the investigation.

If Trump did fire Flynn for lying to the FBI, that would mean the president knew the retired general had committed a serious crime when, according to the former FBI director James Comey, the president asked Comey the next day to halt an FBI investigation into Flynn.

On Sunday Trump, who later fired Comey, again denied making such a request.

In an attempt to contain the fallout from the Saturday tweet, Dowd took the blame, saying he had composed the post and that it was “sloppy”. He elaborated in an interview with Reuters, saying he had drafted the tweet and made “a mistake” when he composed it.

“The mistake was I should have put the lying to the FBI in a separate line referencing his plea,” Dowd said. “Instead, I put it together and it made all you guys go crazy. A tweet is a shorthand.”

Dowd said the first time the president knew for a fact that Flynn lied to the FBI was when he was charged. It was the first and last time he would craft a tweet for the president, he said.

“I’ll take responsibility,” he said. “I’m sorry I misled people.”

Talking to NBC, Dowd said: “I’m out of the tweeting business. I did not mean to break news.”

However, the suggestion that he wrote the tweet was met with incredulity by Democrats and legal experts.

Laurence Tribe, a Harvard law professor, wrote: “Anyone who buys Trump’s lawyer’s alibi for his corruptly treacherous client is a complete fool.”

Richard Painter, who was chief ethics lawyer in the White House of George W Bush, said: “A lawyer who writes a tweet like that incriminating a client should be disbarred. He can tell Mueller he wrote it.”

To some critics, Dowd’s denial that the president can obstruct justice carried echoes of Richard Nixon’s assertion, to David Frost in an interview in 1977, that “when the president does it, that means it is not illegal”. Others pointed out that the articles of impeachment against Nixon opened with the charge that he “obstructed, and impeded the administration of justice”.

Dowd joined Trump’s legal team in June 2017, as investigations by special counsel Robert Mueller began heating up.

The White House has yet to comment.

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