President Donald Trump's personal lawyer, John Dowd, now claims that the president "cannot obstruct justice because he is the chief law enforcement officer" under Article II of the Constitution. Dowd's remarks, reported Monday morning by Axios, have little basis in text or history, and they fly in the face of a decades-old bipartisan consensus: the obstruction of justice statutes indeed apply to the president.

As Eric Posner and I note in a forthcoming California Law Review article, obstruction of justice is a crime with roots in the nation's founding. The Declaration of Independence charged King George III with "obstruct[ing] the administration of justice, by refusing his assent to the laws for establishing judiciary powers." That alone is evidence that the founding generation did not believe that heads of state were immune from obstruction charges. And while Article II instructs the president to "take care that the laws be faithfully executed," that does not give him carte blanche to wield his law enforcement powers any way he chooses. [...]

While the Clinton impeachment was controversial, the claim that the obstruction statutes applied to the president was not. The House Judiciary Committee's report said that the first article of impeachment against Nixon had established a "clear precedent" that a president who used his position of power to obstruct the administration of justice committed an impeachable offense. Clinton's defenders quickly conceded that the obstruction statutes applied to the president. A group of more than 400 law professors sent a letter to Congress opposing impeachment but acknowledging that "[a] President who corruptly used the Federal Bureau of Investigation to obstruct an investigation would have criminally exercised his presidential powers."