In Mueller Clash, Trump May Define What Presidential Power Means

(Bloomberg) -- If Donald Trump prevails in his clash with Special Counsel Robert Mueller, one of his legacies may be to redefine the limits of presidential power -- a constitutional concept so amorphous that even his own lawyers’ views on the matter appear to evolve.

A private letter from Trump’s legal team to Mueller, written in January, asserted what amounts to an unlimited right to halt federal investigations and issue pardons, concluding that a president cannot obstruct justice.

"The true extent of presidential power has not been tested because most presidents have avoided going to the outer extent of that power," Harry Sandick, a former prosecutor with the U.S. attorney for the Southern District of New York and now a white-collar defense lawyer, said in a telephone interview. "If this goes to court, I guess we’ll find out."

In Mueller Clash, Trump May Define What Presidential Power Means

Focused largely on Trump’s firing of James Comey as director of the Federal Bureau of Investigation and its impact on the probe into Russian meddling in the 2016 election, the memo takes a sweeping view of the president’s constitutional authority as the nation’s chief law enforcement officer. The memo was obtained and published Saturday by the New York Times.

"The President cannot obstruct himself or subordinates acting on his behalf by simply exercising these inherent Constitutional powers," John Dowd and Jay Sekulow wrote in the letter.

Trump can’t obstruct justice, as “that would amount to him obstructing himself,” Dowd and Sekulow argued.

Rudy Giuliani, who replaced Dowd as Trump’s lawyer after the letter was written, demurred when asked on ABC’s “This Week” program Sunday whether the president’s power to end a criminal investigation into his own conduct is unlimited. He said such authority may not apply to murder and bribery cases.

Giuliani agreed with the letter’s finding that Trump has unlimited power to pardon while saying, in a separate appearance on NBC’s "Meet the Press," that pardoning himself would probably lead to impeachment. Asked whether a president can’t obstruct justice, Giuliani said he doesn’t know how a court would resolve that question and “you never want to say he can’t ever because you open too wide a flood gate.”

In Mueller Clash, Trump May Define What Presidential Power Means

The letter is "pretty extraordinary" in that it states an action that would otherwise be illegal isn’t illegal when a president does it, former Manhattan federal prosecutor Mimi Rocah said.

"If he and his lawyers persist with these types of arguments, it will end up being decided in the courts over a subpoena to testify or in Congress where impeachment, if nothing else, must place some limits on abuses of presidential powers," Rocah said.

The letter pushes a theory, popular with conservative legal theorists, that a president’s power allows him to issue pardons for any reason, end probes into friends and open investigations into enemies, Sandick said. Under that theory, the only check on that power is impeachment.

"No president has stated it so boldly as this letter states it," Sandick said.

In the letter, Dowd and Sekulow set out their position on Mueller’s ability to force Trump to testify if they can’t work out terms for a voluntary interview: "As you know, under our system of government, the President is not readily available to be interviewed.”

The underpinning of their position is a 1997 ruling from the Washington federal appeals court on the issue of executive privilege, the idea that the president and other executive-branch officials are protected from being forced by courts to provide evidence in many circumstances. In that case, the court ruled in a probe involving former U.S. Agriculture Secretary Mike Espy that the White House counsel ’s notes from its own investigation of Espy were covered by executive privilege.

The only time the privilege concept has been tested in court about a sitting president also involved materials rather than testimony. The U.S. Supreme Court in 1974 ruled that Richard Nixon was required to turn over audio tapes and other material subpoenaed in the Watergate investigation. Nixon later resigned to avoid being removed from office by the Senate in an impeachment trial.

Former President Bill Clinton testified under oath rather than fight a subpoena, which his lawyers concluded would be a worse outcome,. That case related to a sexual-harassment lawsuit filed against Clinton by former Arkansas state employee Paula Jones. While the Supreme Court eventually ruled a sitting president could be subpoenaed, its ruling applied only to actions before the president took office.

Trump’s lawyers claim Mueller would have to show specifically how the president’s testimony would be necessary to the probe and why the information can’t be obtained from other sources, both of which were cited in the Espy ruling. They argued the special counsel already has what he needs from the reams of documents he’s been provided and from interviews with campaign and White House staff.

In an email, Harvard Law School Professor Laurence Tribe, a frequent critic of Trump, called the letter "flatly wrong legally and indefensible constitutionally."

"Trump’s lawyers’ sweepingly Nixonian claim of unbounded presidential power is inconsistent with the core American principle that no-one is above the law," Tribe wrote on Twitter. "It would mean that even pardoning someone in return for a bribe is just fine. That’s simply wrong."

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