Trump’s Lawyers Say He Is the Law

(Bloomberg Opinion) -- On Saturday, the New York Times published two confidential memos President Donald Trump’s legal team sent to Special Counsel Robert Mueller last year and earlier this year. The memos argue, among other things, that one facet of the Justice Department’s investigation of Trump – whether the president tried to obstruct the probe itself – isn’t viable because the president has such broad constitutional authority to end the investigation or pardon those targeted by it that presidential obstruction simply can’t exist.

The first memo, written shortly after Mueller’s appointment, offers an almost unfettered view of some of the powers the nation’s chief law enforcement official enjoys: 

“Put simply, the Constitution leaves no question that the President has exclusive authority over the ultimate conduct and disposition of all criminal investigations and over those executive branch officials responsible for conducting those investigations. Thus, as set forth more fully below, as a matter of law and common sense, the President cannot obstruct himself or subordinates acting on his behalf by simply exercising these inherent Constitutional powers.”

The second memo, written in January in response to Mueller’s request to interview Trump, put it more bluntly:

“The President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.”

On Sunday, one of Trump’s attorneys, Rudy Giuliani, made his rounds on the TV talk shows to elaborate on all of this. On NBC’s “Meet the Press,” he said that “it sure looks” like the president has the authority to stop Mueller’s probe and even pardon himself should he be found guilty of a federal crime. “Nothing limits the presidential pardon,” he allowed.

Not that Trump would ever go there, of course. “The president of the United States pardoning himself would just be unthinkable,” said Giuliani. “And it would lead to probably an immediate impeachment.”

Positing that the president might reside beyond the reach of federal law was so unthinkable that Giuliani also brought it up on ABC’s “This Week.”

“He has no intention of pardoning himself," said Giuliani. Still, it is a “really interesting constitutional argument: ‘Can the president pardon himself?’”

It sure is interesting. The president’s lawyers and allies are asserting that he is endowed with such bounteous constitutional powers that he can ultimately swing a scythe across law enforcement institutions that might constrain or restrain him – if the president so chooses, but which Giuliani assures us he would never choose to do.

Why put that argument out there? Well, Trump’s lawyers appear to be uncomfortable with the prospect of Mueller issuing a subpoena that would force the president to testify about possible obstruction. They argue in the second, much lengthier memo that the president and others have already turned over copious amounts of information to investigators, including information that executive privilege otherwise might have allowed them to withhold. All of that information, shared in the interest of transparency and cooperation, would make Trump’s testimony redundant and thus unnecessary, they also argue.

Mueller, however, wants to discern what the president’s intentions were when, for example, he fired his former director of the Federal Bureau of Investigation, James Comey. The president’s own testimony offers a window onto “intent” – and possible knowledge of wrongdoing – that’s central to criminal prosecutions and which documents and testimony from other people won’t fully establish.

That’s what makes a brief but telling section at the very end of the second memo that Trump’s lawyers sent to Mueller so interesting.

In that section, the lawyers address a New York Times article from last July disclosing that the president’s son, Donald Trump Jr., and other campaign advisers met with a Russian lawyer linked to the Kremlin during the 2016 presidential campaign to discuss potentially damaging information about Trump’s opponent, Hillary Clinton. Trump’s attorneys also advise Mueller that he has “received all of the notes, communications and testimony indicating that the President dictated a short but accurate response to the New York Times article on behalf of his son, Donald Trump, Jr.”

The problem with that description is that for the better part of the last year, the White House has claimed repeatedly that the president didn’t write the statement (which said that Donald Jr., met with the Russians to discuss Russia’s policies on adoptions and made no mention of whether the presidential campaign was discussed).

On ABC on Sunday, Giuliani said that one of the president’s attorneys, Jay Sekulow, made a “mistake” last summer when he said Trump had nothing to do with Donald Jr.’s statement. Giuliani didn’t address the fact that Sarah Sanders, the White House press secretary, also claimed the president wasn’t involved. Giuliani also didn’t account for why a number of other Trump aides last year disputed a Washington Post article reporting that Trump had “dictated” Donald Jr.’s statement.

Now that Trump’s attorneys have asserted themselves that the president dictated the response to the Times, some legal experts are focusing on the significance of that revelation. Jed Shugerman, a professor at Fordham University School of Law, took to Twitter to note that  the “stunning admission” amounts to “felony obstruction” and “witness tampering.”

Wouldn’t Mueller want to talk to the president about all of that? Of course he would. And wouldn’t whatever “notes, communications and testimony” that the White House has turned over about this event be not quite the same as sitting the president down to ask him in person what was on his mind – what his intent was – when he dictated that letter? Of course they wouldn’t.

The memos leaked to the Times amount to warnings directed at Mueller and his investigative team. Trump’s lawyers have put the Justice Department on notice about how they interpret the full powers of the executive branch, an interpretation that might have to be tested, ultimately, before the Supreme Court. Leaking the memos also pulls the public into the debate, a debate that eventually will force citizens, voters and politicians to decide whether they favor an unfettered and fulsome presidency that takes flight at the expense of the rule of law.

©2018 Bloomberg L.P.

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