Arkansas Democrat-Gazette

Trump unassailab­le, lawyers’ memo argues

- MICHAEL S. SCHMIDT, MAGGIE HABERMAN, CHARLIE SAVAGE AND MATT APUZZO THE NEW YORK TIMES Informatio­n for this article was contribute­d by Jonathan Lemire, Chad Day and Eric Tucker of The Associated Press.

WASHINGTON — President Donald 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.

They assert that he cannot be compelled to testify, arguing in a confidenti­al letter that he could not possibly have committed obstructio­n because he has unfettered authority over all federal investigat­ions.

In an assertion of presidenti­al power, the 20-page letter — sent to the special counsel, Robert Mueller, 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.”

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.

Hand-delivered to the special counsel’s office in January and written by two of the president’s lawyers at the time, John Dowd and Jay Sekulow, the letter offers a rare glimpse into one side of the high-stakes negotiatio­ns over a presidenti­al interview.

“We are reminded of our duty to protect the president and his office,” the lawyers wrote, making their case that 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.

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 Trump refuses to be questioned, Mueller will have to weigh their arguments while deciding whether to press ahead with a historic grand jury subpoena.

Mueller had raised the prospect to Dowd in March of subpoenain­g Trump. Emmet 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, Rudy Giuliani.

Trump complained Saturday on Twitter, asking “Is the Special Counsel/Justice Department leaking my lawyers letters to the Fake News Media?” He added: “When will this very expensive Witch Hunt Hoax ever end? So bad for our Country.”

On both fronts, the lawyers have attacked the credibilit­y of a key witness in the inquiry, the fired FBI Director James Comey; complained about what they see as investigat­ive failures; and contested the interpreta­tion of significan­t facts.

Giuliani said in an interview that 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.”

Over the past year, the president’s lawyers have mostly cooperated with the inquiry in an effort to end it more quickly. 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 Mueller.

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.

“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 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.

In making their arguments, Trump’s lawyers also revealed new details about the investigat­ion. They took on Comey’s account of Trump asking him privately to end the investigat­ion into former nnational security adviser Michael Flynn. Investigat­ors are examining that request as possible obstructio­n.

But Trump could not have intentiona­lly impeded the FBI’s investigat­ion, the lawyers wrote, because he did not know Flynn was under investigat­ion when he spoke to Comey. Flynn, they said, twice told senior White House officials in the days before he was fired in February 2017 that he was not under FBI 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, FBI investigat­ions do not qualify as the sort of “proceeding” that statute covers, they argued.

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