Chattanooga Times Free Press

Trump’s lawyers, in confidenti­al memo, argue to head off subpoena

- BY MICHAEL S. SCHMIDT, MAGGIE HABERMAN, CHARLIE SAVAGE AND MATT APUZZO

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, 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 Mueller, and obtained by The New York Times — contends 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.

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.

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, Mueller is reviewing actions and conversati­ons involving senior White House officials, including the president, the vice president and the White House counsel.

Mueller has told the president’s lawyers 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 of subpoenain­g Trump to 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, Rudy Giuliani.

The attempt to dissuade Mueller from seeking a grand jury subpoena is one of two fronts on which Trump’s lawyers are fighting. In recent weeks, they have also begun a publicrela­tions campaign to discredit the investigat­ion and in part to pre-empt a potentiall­y damaging special counsel report that could prompt impeachmen­t proceeding­s.

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

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 FBI to drop — or perhaps the one Mueller is pursuing into Trump himself as well.

Dowd and Sekulow outlined 16 areas they said the special counsel was scrutinizi­ng as part of the obstructio­n investigat­ion, including the firings of Comey and of Flynn, and the president’s reaction to Attorney General Jeff Sessions’ recusal from the Russia investigat­ion.

Trump’s lawyers argued 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 Trump’s time, the special counsel’s office should have to clear a higher bar to get him to talk. Mueller, the president’s attorneys argued, needs to prove 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.

 ?? FILE PHOTO JOHN MARSHALL MANTEL/THE NEW YORK TIMES ?? John Dowd, who resigned in March as President Donald Trump’s lead lawyer for the special counsel investigat­ion, helped write a memo arguing the president cannot be compelled to testify as part of the probe.
FILE PHOTO JOHN MARSHALL MANTEL/THE NEW YORK TIMES John Dowd, who resigned in March as President Donald Trump’s lead lawyer for the special counsel investigat­ion, helped write a memo arguing the president cannot be compelled to testify as part of the probe.

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