Trump’s Lawyers, in Confidential Memo, Argue to Head Off a Historic Subpoena
© Doug Mills/The New York Times
President Trump’s lawyers have privately laid out a broad view of his constitutional powers
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.”
[Read the Trump lawyers’ confidential memo to Mr. Mueller here.]
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.
© Doug Mills/The New York Times
James B. Comey, the former director of the F.B.I., is one of the main witnesses in the investigation…
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.
There was No Collusion with Russia (except by the Democrats). When will this very expensive Witch Hunt Hoax ever end? So bad for our Country. Is the Special Counsel/Justice Department leaking my lawyers letters to the Fake News Media? Should be looking at Dems corruption instead?
— Donald J. Trump (@realDonaldTrump) June 2, 2018
Mr.
Trump and his lawyers have also attacked the credibility of a key
witness in the inquiry, the fired F.B.I. director James B. Comey;
complained about what they see as investigative failures; and contested
the interpretation of significant facts.
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.”
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