The New York Times is reporting that lawyers for President Trump are arguing that the President cannot obstruct justice:
President Trump’s lawyers have for months quietly waged a campaign to keep the special counsel from trying to force him to answer questions in the investigation into whether he obstructed justice, asserting that he cannot be compelled to testify and arguing in a confidential letter that he could not possibly have committed obstruction because he has unfettered authority over all federal investigations.
In a brash assertion of presidential power, the 20-page letter — sent to the special counsel, Robert S. Mueller III, and obtained by The New York Times — contends that the president cannot illegally obstruct any aspect of the investigation into Russia’s election meddling because the Constitution empowers him to, “if he wished, terminate the inquiry, or even exercise his power to pardon.”
Mr. Trump’s lawyers fear that if he answers questions, either voluntarily or in front of a grand jury, he risks exposing himself to accusations of lying to investigators, a potential crime or impeachable offense.
Mr. Trump’s broad interpretation of executive authority is novel and is likely to be tested if a court battle ensues over whether he could be ordered to answer questions. It is unclear how that fight, should the case reach that point, would play out. A spokesman for Mr. Mueller declined to comment.
“We don’t know what the law is on the intersection between the obstruction statutes and the president exercising his constitutional power to supervise an investigation in the Justice Department,” said Jack Goldsmith, a Harvard Law School professor who oversaw the Justice Department’s Office of Legal Counsel during the Bush administration. “It’s an open question.”
Hand-delivered to the special counsel’s office in January and written by two of the president’s lawyers at the time, John M. Dowd and Jay A. Sekulow, the letter offers a rare glimpse into one side of the high-stakes negotiations over a presidential interview.
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Mr. Trump’s defense is a wide-ranging interpretation of presidential power. In saying he has the authority to end a law enforcement inquiry or pardon people, his lawyers ambiguously left open the possibility that they were referring only to the investigation into his former national security adviser, Michael T. Flynn, which he is accused of pressuring the F.B.I. to drop — or perhaps the one Mr. Mueller is pursuing into Mr. Trump himself as well.
Mr. Dowd and Mr. Sekulow outlined 16 areas they said the special counsel was scrutinizing as part of the obstruction investigation, including the firings of Mr. Comey and of Mr. Flynn, and the president’s reaction to Attorney General Jeff Sessions’s recusal from the Russia investigation.
Over the past year, the president’s lawyers have mostly cooperated with the inquiry in an effort to end it more quickly. Mr. Trump’s lawyers say he deserves credit for that willingness, citing his waiver of executive privilege to allow some of his advisers to speak with Mr. Mueller.
“We cannot emphasize enough that regardless of the fact that the executive privilege clearly applies to his senior staff, in the interest of complete transparency, the president has allowed — in fact, has directed — the voluntary production of clearly protected documents,” his lawyers wrote.
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“Ensuring that the office remains sacred and above the fray of shifting political winds and gamesmanship is of critical importance,” they wrote.
They argued that the president holds a special position in the government and is busy running the country, making it difficult for him to prepare and sit for an interview. They said that because of those demands on Mr. Trump’s time, the special counsel’s office should have to clear a higher bar to get him to talk. Mr. Mueller, the president’s attorneys argued, needs to prove that the president is the only person who can give him the information he seeks and that he has exhausted all other avenues for getting it.
“The president’s prime function as the chief executive ought not be hampered by requests for interview,” they wrote. “Having him testify demeans the office of the president before the world.”
They also contended that nothing Mr. Trump did violated obstruction-of-justice statutes, making both a technical parsing of what one such law covers and a broad constitutional argument that Congress cannot infringe on how he exercises his power to supervise the executive branch. Because of the authority the Constitution gives him, it is impossible for him to obstruct justice by shutting down a case or firing a subordinate, no matter his motivation, they said.
“Every action that the president took was taken with full constitutional authority pursuant to Article II of the United States Constitution,” they wrote of the part of the Constitution that created the executive branch. “As such, these actions cannot constitute obstruction, whether viewed separately or even as a totality.”
As a preliminary matter, it’s worth noting two things. First of all, this letter was apparently sent to Mueller in January of this year as part of the negotiations surrounding the question of whether or not the President would submit to an interview with Mueller and other members of the investigation team. While that interview has not been scheduled, and may never be scheduled, it’s also apparent that the Trump legal team has utterly failed if the point of the letter was to intimidate Mueller in some way. Second, the entire argument regarding the argument that the President cannot commit obstruction of justice is undercut by the fact that it is primarily based on an outdated statute, and that it fails to mention that Congress passed a broader law in 2002 which expands the definition of obstruction to include obstruction of proceedings that have not started. Additionally, the Times article cites Samuel W. Buell, a Duke Law School professor who was one of the lead prosecutors in the Enron case. As the article notes, Buell points out that the actual issue was whether the President had obstructed, or is obstructing, a potential investigation by a grand jury investigation or criminal trial. In that sense, it’s unclear why they are basing their argument on the wrong statute.
The Washington Post’s Ruth Marcus points out just how radical the President’s lawyers argument is:
As Daniel Hemer and Eric Posner write in the California Law Review, “No one thinks that . . . the president should be able to commit a crime and then call off the investigation of it. What if he murdered his valet?”
That is a fanciful hypothetical, but the more reality-based one also underscores the extreme nature of the Trump lawyers’ claim. “It is obvious enough that it would be wrong for the president to order spurious investigations of his political opponents in order to harass them,” Hemel and Posner write. “But it would seem to follow that the president should not call off investigations of his political aides and allies (and of himself) in order to protect them (and himself) from legal jeopardy. If he could, then he or his aides could engage in criminal activity in order to harass their political opponents — as the Watergate burglary, a spy operation against the Democratic National Committee, illustrates — without fear of legal liability.”
Indeed, during Watergate, the articles of impeachment against Nixon included the charge that he obstructed justice by “interfering or endeavouring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special Prosecution Force, and Congressional Committees.”
At any time and for any reason. The context was Comey, but the implications are chilling: that Trump asserts the right to terminate the Russia probe altogether. Or the investigation into his lawyer Michael Cohen.
This is a scary vision of the power entrusted to any president, but especially this one.
And Harry Litman, who has worked in the Justice Department and now practices law and teaches, points out that the President’s attorneys are arguing that he is, effectively, a King:
The president believes he is above the law. That’s the takeaway from the confidential 20-page memo sent by President Trump’s lawyers to the special counsel, Robert Mueller, published over the weekend by The Times. And it’s the same sentiment that Rudy Giuliani expressed on Sunday when he suggested that Mr. Trump has the power to pardon himself.
The central claim of the legal memorandum is that it is impossible for the president to illegally obstruct any aspect of the investigation into Russia’s election meddling. That’s because, as president, Mr. Trump has the constitutional power to terminate the inquiry or pardon his way out of it. Therefore — and this is the key and indefensible point — he cannot obstruct justice by exercising this authority “no matter his motivation.”
This understanding of presidential power is radical and absolutist. It is also unsound and almost certain to be sharply rejected should it ever be proffered in court.
The memo itself, which you can read in full at The New York Times is really quite extraordinary in the extent to which it attempts to push ideas such as Presidential authority and autonomy and Executive Privilege far beyond the extent which any previous President has ever done. At 20-odd pages, it’s rather long and detailed, but in its essential points, it argues that Presidential authority, especially in the administration of justice, is so overarching that it’s impossible for a sitting President to “obstruct” a Federal inquiry even when it involves his campaign, his Administration, or himself. While this is close to the argument that President Nixon made during the showdown with Watergate Special Prosecutor Leon Jaworski over whether or not Nixon could be compelled to produce the Oval Office tapes of his conversations with top aides regarding the investigation into the break-in at DNC Headquarters at the Watergate Complex or any of the other actions that the Nixon Administration may have taken. As President, they argue, the President has the absolute authority to order any investigation closed and, therefore, any effort he makes in that regard can never be considered to be obstruction of justice. That argument was ultimately rejected by the Supreme Court in United States v. Nixon, of course, and the President was forced to turn over the tapes. Within less than two weeks after that, President Nixon ended up resigning rather than face impeachment and certain conviction by the Senate. Under this theory, of course, President Trump could not only order Special Counsel Mueller be dismissed but that the entire Russia investigation should be shut down.
As one pundit put it on Twitter, this letter makes clear that we’ve officially entered the “I never broke the law. I AM the law” phase of the Russia investigation. The whole thing reminds one of perhaps the most infamous exchange between former President Nixon and British journalist David Frost during Frost’s interview of Nixon in 1977;
FROST: The wave of dissent, occasionally violent, which followed in the wake of the Cambodian incursion, prompted President Nixon to demand better intelligence about the people who were opposing him. To this end, the Deputy White House Counsel, Tom Huston, arranged a series of meetings with representatives of the CIA, the FBI, and other police and intelligence agencies.
These meetings produced a plan, the Huston Plan, which advocated the systematic use of wiretappings, burglaries, or so-called black bag jobs, mail openings and infiltration against antiwar groups and others. Some of these activities, as Huston emphasized to Nixon, were clearly illegal. Nevertheless, the president approved the plan. Five days later, after opposition from J. Edgar Hoover, the plan was withdrawn, but the president’s approval was later to be listed in the Articles of Impeachment as an alleged abuse of presidential power.
FROST: So what in a sense, you’re saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it’s in the best interests of the nation or something, and do something illegal.
NIXON: Well, when the president does it that means that it is not illegal.
FROST: By definition.
NIXON: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president’s decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they’re in an impossible position.
Nixon’s response, of course, was limited to Frost’s hypothetical question regarding national security matters, or matters that the President believed to be within the ambit of national security. The Trump legal memorandum goes beyond that and essentially argues that the President has an authority that is so complete that, arguably, it is more all-encompassing than even the view that British law held regarding the authority of the Monarchy at the time of the American Revolution. That authority, of course, had been limited significantly by the Magna Carta in 1215 and was limited even further over intervening centuries until the United Kingdom got to the point where it is today wherein the Monarch is effectively little more than a figurehead. Instead, the view of the Presidency that’s presented in this memorandum is more akin to the absolute monarchy represented by the Russian Czar’s or by King Louis XIV of France when he uttered the phrase ‘L’etat c’est moi‘ (‘I am the state’). It is a view of the Presidency that, arguably, even Nixon himself would not have asserted notwithstanding his actions, and it is a view of the Presidency that is utterly incompatible with American law, the Constitution, or the English Common Law on which the two were based. If it is allowed to stand, it would be an open invitation for future Presidents to push the envelope even further into areas
