Trump unassailable, lawyers’ memo argues
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.