Trump’s Lawyers, in Confidential Memo, Argue to Head Off a Historic Subpoena
S E E D E D C O N T E N T
Trump’s Lawyers, in Confidential Memo, Argue to Head Off a Historic Subpoena
The New York Times - By MICHAEL S. SCHMIDT, MAGGIE HABERMAN, CHARLIE SAVAGE and MATT APUZZO
WASHINGTON — 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.
Though it is written as a defense of the president, the letter recalls the tangled drama of early 2017 as the new administration dealt with the Russia investigation. It also serves as a reminder that in weighing an obstruction case, Mr. Mueller is reviewing actions and conversations involving senior White House officials, including the president, the vice president and the White House counsel.
The letter also lays out a series of claims that foreshadow a potential subpoena fight that could unfold in the months leading into November’s midterm elections.
“We are reminded of our duty to protect the president and his office,” the lawyers wrote, making their case that Mr. Mueller has the information he needs from tens of thousands of pages of documents they provided and testimony by other witnesses, obviating the necessity for a presidential interview.
Mr. Mueller has told the president’s lawyers that he needs to talk to their client to determine whether he had criminal intent to obstruct the investigation into his associates’ possible links to Russia’s election interference. If Mr. Trump refuses to be questioned, Mr. Mueller will have to weigh their arguments while deciding whether to press ahead with a historic grand jury subpoena.
Mr. Mueller had raised the prospect of subpoenaing Mr. Trump to Mr. Dowd in March. Emmet T. Flood, the White House lawyer for the special counsel investigation, is preparing for that possibility, according to the president’s lead lawyer in the case, Rudolph W. Giuliani.
The attempt to dissuade Mr. Mueller from seeking a grand jury subpoena is one of two fronts on which Mr. Trump’s lawyers are fighting. In recent weeks, they have also begun a public-relations campaign to discredit the investigation and in part to pre-empt a potentially damaging special counsel report that could prompt impeachment proceedings.
Mr. Trump complained on Twitter on Saturday before this article was published that the disclosure of the letter was a damaging leak to the news media and asked whether the “expensive Witch Hunt Hoax” would ever end.
Donald J. Trump
Mr. Giuliani said in an interview that Mr. Trump is telling the truth but that investigators “have a false version of it, we believe, so you’re trapped.” And the stakes are too high to risk being interviewed under those circumstances, he added: “That becomes not just a prosecutable offense, but an impeachable offense.”
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.
Presidents frequently assert executive privilege, their right to refuse demands for information about internal executive branch dealings, but its limits are murky and mostly untested.
Mr. Trump’s lawyers are gambling that Mr. Mueller may not want to risk an attempt to forge new legal ground by bringing a grand jury subpoena against a sitting president into a criminal proceeding.
“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.”
That constitutional claim raises novel issues, according to legal experts. Under the Constitution, the president wields broad authority to control the actions of the executive branch. But the Supreme Court has ruled that Congress can impose some restrictions on his exercise of that power, including by upholding statutes that limit his ability to fire certain officials. As a result, it is not clear whether statutes criminalizing obstruction of justice apply to the president and amount to another legal limit on how he may wield his powers.
The letter does not stress legal opinions by the Justice Department in the Nixon and Clinton administrations that held that a sitting president cannot be indicted, in part because it would impede his ability to carry out his constitutional responsibilities. But in recent weeks, Mr. Giuliani has pointed to those memos as part of a broader argument that, by extension, Mr. Trump also cannot be subpoenaed.
Subpoenas of the president are all but unheard-of. President Bill Clinton was ordered to testify before a grand jury in 1998 after requests for a voluntary appearance made by the independent counsel, Kenneth W. Starr, went nowhere.
To avoid the indignity of being marched into the courthouse, Mr. Clinton had his lawyers negotiate a deal in which the president agreed to provide testimony as long as it was taken at the White House and limited to four hours. Mr. Starr then withdrew the subpoena, avoiding a definitive court fight.
In making their arguments, Mr. Trump’s lawyers also revealed new details about the investigation. They took on Mr. Comey’s account of Mr. Trump asking him privately to end the investigation into Mr. Flynn. Investigators are examining that request as possible obstruction.
But Mr. Trump could not have intentionally impeded the F.B.I.’s investigation, the lawyers wrote, because he did not know Mr. Flynn was under investigation when he spoke to Mr. Comey. Mr. Flynn, they said, twice told senior White House officials in the days before he was fired in February 2017 that he was not under F.B.I. scrutiny.
“There could not possibly have been intent to obstruct an ‘investigation’ that had been neither confirmed nor denied to White House counsel,” the president’s lawyers wrote.
Moreover, F.B.I. investigations do not qualify as the sort of “proceeding” an obstruction-of-justice statute covers, they argued.
“Of course, the president of the United States is not above the law, but just as obvious and equally as true is the fact that the president should not be subjected to strained readings and forced applications of clearly irrelevant statutes,” Mr. Dowd and Mr. Sekulow wrote.
But the lawyers based those arguments on an outdated statute without mentioning that Congress passed a broader law in 2002 that makes it a crime to obstruct proceedings that have not yet started.
Samuel W. Buell, a Duke Law School professor and white-collar criminal law specialist who was a lead prosecutor for the Justice Department’s Enron task force, said the real issue was whether Mr. Trump obstructed a potential grand jury investigation or trial — which do count as proceedings — even if the F.B.I. investigation had not yet developed into one of those. He called it inexplicable why the president’s legal team was making arguments that were focused on the wrong obstruction-of-justice statute.
They went beyond asserting Mr. Trump’s innocence, casting him as the hero of the Flynn episode and contending that he deserved credit for ordering his aides to investigate Mr. Flynn and ultimately firing him.
“Far, far, from obstructing justice, the only individual in the entire Flynn story that ensured swift justice was the president,” they wrote. “His actions speak louder than any words.”
The lawyers acknowledged that Mr. Trump dictated a statement to The Times about the 2016 Trump Tower meeting between some of his top advisers and Russians who were said to have damaging information about Hillary Clinton. Though the statement is misleading — in it, the president’s eldest son, Donald Trump Jr., said he met with Russians “primarily” to discuss adoption issues — the lawyers call it “short but accurate.”
Mr. Mueller is investigating whether Mr. Trump, by dictating the comment, revealed that he was trying to cover up proof of the campaign’s ties to Russia — evidence that could go to whether he had the same intention when he took other actions.
The president’s lawyers argued that the statement is a matter between the president and The Times — and the president’s White House and legal advisers have said for the past year that misleading journalists is not a crime.
Mr. Trump’s lawyers also try to untangle another potential piece of evidence in the obstruction investigation: his assertion, during an interview with Lester Holt of NBC two days after Mr. Comey was fired, that he was thinking while he weighed the dismissal that “this Russia thing” had no validity. Mr. Mueller’s investigators view that statement as damning, according to people familiar with the investigation.
But the lawyers say that news accounts seized on only part of his comments and that his full remarks show that the president was aware that firing Mr. Comey would lengthen the investigation and dismissed him anyway.
The complete interview, the lawyers argued, makes clear “he was willing, even expecting, to let the investigation take more time, though he thinks it is ridiculous, because he believes that the American people deserve to have a competent leader of the F.B.I.”
Tags
Who is online
581 visitors
Surprise Surprise Surprise!
Snicker...
I thought this was all settled. All they can do to Trump is impeach him and then try him....if there was shred of evidence he committed a high crime or misdemeanor. But there isn't, so they won't.
I guess you did not bother to read the article before blathering that nonsense. An Excerpt...
In fact the argument Trump's lawyers are making is exactly the same as what Nixon said: "When the President does it, that means that it is not illegal".
Of course Nixon was entirely wrong about that.
"If the President did it then it can't be a crime". That was bullshit then and it is bullshit today...
We were all told Watergate proved, once and for all, "Presidents are not above our laws".
I am gonna put that quote between these two bookends, "I did not collude", and, "I did not obstruct"...
President trump is innocent until proven guilty. I'll wait to see once the investigations are over if the man is actually even charged with anything.
Personally I think mr trump was smart enough to NOT allow HIMSELF to be what he considers illegally involved in anything that could jeopardize the "job" he had wanted for so long. (But, there is more than one way to do everything)
Just ask General Flynn and the president's lawyers .. and I dont doubt a few "close family, friends and others"
Mr and now President trump probably doesn't do all kids of dirty jobs himself like washing his car or changing a tire either so .... WTF .. Ya hire people for stuff like that where ya can ... lol
Time will tell, let the investigation conclude.
Mainly lets stop any future "Meddling" in any US election from any outside interference from now on. For either and/or both "Sides" Forever !! Period !!
Hell, We have enough trouble all on our own electing good honest competent people to hold power over us.
Smart enough?? Lol, I'd be surprised if President Trump is smart enough to tie his shoe laces, he probably uses velcro!
Yep smart enough. I stopped underestimating this man long ago. If he was stupid, he wouldn't be much of a risk or problem and he wouldn't have taken over a political party, the election and the country.
I don't see any basis at all to support the idea that Trump is particularly intelligent. If he is he has wasted those gifts. He clearly knows next to nothing about any of the issues the country and the world face.
This man couldn't talk (unscripted) for two minutes about any issue, any issue at all , without babbling , cartoonishly repeating himself, or making a constant series of factual mistakes. He hasn't done it yet and he has been in the public eye as a national politician for three years now.
I didn't say he was, I said he's smart enough to not do anything illegal himself to jeopardize a "job" he wanted. I also pointed out he was also smart enough to take over a political party and win an election and that I stopped underestimating him long ago.
Sorry, all that stuff does is prove he is a conman and he found a bunch of easy marks. He is the president of the United States and he has never not even once demonstrated depth of knowledge about any of the issues that his job requires him to deal with. It is a disgrace, but our people are so confused and misdirected that he has been able to skate through. Any of the main three evening hosts on MSNBC could destroy Trump in a debate or an interview.
I'm with John on this one. He wasn't even smart enough to avoid saying on camera that he fired Comey to end the Russia investigation. That was obstruction of justice, and he admitted to it in front of everybody.
Yep, timed at a time there was no repercussions to speak of, the stories now been told and I severely doubt the president will ever be charged with a crime because of either what he said or what he did on this matter.
what a stupid man ? really ? I'm not too sure.
While I agree with this, I also believe trump thinks he operates on instinct best. Wrong or right he does always seem to come out on top himself so it seems to serve him well. I'm not saying trump is another einstein he's not but he is smart enough to follow the law when he has a great deal at stake ( as much as he feels the law should b e followed at least)
winning at all cost short of destroying oneself
trump doesn't need to be smart, in fact the dumber the better, he just has to be obedient. Now his HANDLERS have to be smarter, but probably not as smart as they think they are.
Surely we are speaking of a different trump. Handlers ?.. obedient ?..
LOL IMO: this man can hardly control himself, his brain to mouth connection seems instantaneous.
Control trump... "Good luck"
But telling America "Good Luck controlling this man" is nothing new for me, I've been saying that for over a year now.
If only Nixon had made the same argument he'd still be president today!
Did everyone catch this little gem from the article? "The president’s lawyers argued that the statement is a matter between the president and The Times — and the president’s White House and legal advisers have said for the past year that misleading journalists is not a crime." Can you believe that Orwellian bullshit?
I guess all that old fashion junk about "Democracy" has changed. Now we elect Kings to rule that are above mere laws or any reproach. You know, "President" Un of N.K. "President" Putin of course, the "President" of China (Xi?) a smattering of other countries and now, KING trump.
If you can find anybody to run against the current rulers, your Candidate might disappear, be found dead or be imprisoned or at least discredited by the states "news." Don't worry, you can still vote in these countries Sorta handy that way, counts as a confession.
A Democracy requires intelligence, knowledge, compassion and courage and I'm not seeing a lot of any of that.
Well, that's 'merica, longs as we gots our guns and can insult anybody and everybody anytime, anyplace, we's good.
And, not just any king butt The King of Vulgaria. We are all very lucky he accepted Putin's decision he rule over us /s...
I think trump and his loophole-looking lawyers are in for a biiigg surprise.
"Y U G E"...
Trump and his lawyers are fighting an uphill battle on this and the legal experts agree Trump is losing it...
Without going META can anyone explain why this seeded article would drop off of FB so quickly?
No comments for several hours?
That would be my guess. It doesn't take that long before a article gets pushed off the FP.