Trump's lawyers, in confidential memo, argue to head off a historic subpoena
Posted June 2, 2018 3:15 p.m. EDT
Updated June 2, 2018 5:05 p.m. EDT
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 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.
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 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, Mueller is reviewing actions and conversations involving senior White House officials, including the president, the vice president and the White House counsel.
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 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 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 public-relations campaign to discredit the investigation and in part to pre-empt a potentially damaging special counsel report that could prompt impeachment proceedings.
Trump complained on Twitter 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.
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.
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.”
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.
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. “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.
Trump’s lawyers are gambling that 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 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 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 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, Giuliani has pointed to those memos as part of a broader argument that, by extension, 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, 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. Starr then withdrew the subpoena, avoiding a definitive court fight.
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 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. “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,” Dowd and Sekulow wrote.
But the lawyers based those arguments by citing 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 Trump obstructed a potential grand jury investigation or trial — which do count as proceedings — even if the FBI 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 Trump’s innocence, casting him as the hero of the Flynn episode and contending that he deserved credit for ordering his aides to investigate 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 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.”
Mueller is investigating whether 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.
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 Comey was fired, that he was thinking while he weighed the dismissal that “this Russia thing” had no validity. 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 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 FBI.”