A 20-page confidential letter from President Trump's legal team leaked to the New York Times argues that President Trump could not have obstructed justice at any point during his presidency due to his Constitutional authority, and that he cannot be compelled to testify in front of Special Counsel Robert Mueller due to his Constitutional powers as President.
The letter, crafted by Trump's legal team, reveals that the White House has been waging a quiet campaign for several months to prevent Mueller from trying to subpoena the president - contending that because the Constitution empowers him to "if he wished, terminate the inquiry, or even exercise his power to pardon," Trump could not have illegally obstucted any aspect of the investigation into potential collusion between his campaign and Russia during the 2016 US election.
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. -NYT
"It remains our position that the president's actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired," writes President Trump's former attorney John Dowd, who left the team in March.
The leaked letter effectively reveals Trump's trump card in the event Mueller proceeds with a subpoena.
“We are reminded of our duty to protect the president and his office,” wrote the lawyers, who stressed that “Ensuring that the office remains sacred and above the fray of shifting political winds and gamesmanship is of critical importance."
Translation - this is a clown show, go pound sand.
Mueller's office has told Trump's lawyers they need to speak with the president to determine whether he criminally obstructed any aspect of the Russia investigation. If Trump refuses to be questioned, Mueller will be forced to choose whether or not to try and subpoena him - which, as Trump's lawyers have made abundantly clear, will result in a Constitutional crisis.
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. -NYT
“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.”
Trump's attorneys also argued that the president did nothing to technically violate obstruction-of-justice statutes.
“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.”
According to legal experts cited by the Times, the president wields broad authority to control the actions of the executive branch, which includes the Department of Justice and the FBI. The Supreme Court, however, has ruled that Congress can impose some restrictions on that power, including limiting a president's 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," notes the Times.
About that Russia probe...
And while Trump's team works to make the case against testifying, media reports and Congressional investigations have revealed what appears to be grave misconduct by the FBI and Department of Justice in order to prevent Trump from winning the 2016 US election, and then once he won - discredit him with a Russia allegations fabricated by US Intelligence agencies, UK intelligence assets - in collusion with the Clinton campaign and the Obama administration.
We now know that Trump campaign aides were likely fed rumors that Russia had damaging information on Hillary Clinton, and then used as patsies by Clinton-linked operatives in what appears to have been a set-up, something Trump once again hinted in his latest tweet, in which he also asked if the Mueller team or the DOJ is leaking his lawyers' letters to the "Fake News Media."
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
Trump's attorneys have also attacked the credibility of former FBI Director James Comey, while also contesting what they believe are Mueller's version 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.” -NYT
They argue that Trump couldn't have intentionally obstructed justice anyway based on the fact that he did not know that Mike Flynn was under investigation when Trump spoke to Comey.
“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, adding that FBI investigations generally do not qualify as the type of "proceeding" covered by an obstruction-of-justice statute.
“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,” wrote Mr. Dowd and Mr. Sekulow.
The Times, however, suggests that their argument may be outdated, as a 2002 law passed by Congress makes it a crime to obstruct proceedings that have not yet begun.
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.
Regardless, it appears Trump's team is going to tell Mueller to take a hike if he tries to subpoena the president, and that it will simply further embarrass the United States on the world stage.
"We write to address news reports, purportedly based on leaks, indicating that you may have begun a preliminary inquiry into whether the president's termination of former FBI Director James Comey constituted obstruction of justice," the June 2017 memo from Trump attorney Marc Kasowitz to Mueller reads - while a more recent memo outlines the 16 areas they believe Mueller is focusing on (via CBS News)
- Former National Security Advisor Lt. Gen. Michael Flynn -- information regarding his contacts with Ambassador Kislyak about sanctions during the transition process;
- Lt. Gen. Flynn's communications with Vice President Mike Pence regarding those contacts;
- Lt. Gen. Flynn's interview with the FBI regarding the same;
- Then-Acting Attorney General Sally Yates coming to the White House to discuss same;
- The president's meeting on Feb. 14, 2017, with then-Director James Comey;
- Any other relevant information regarding former National Security Advisor Michael Flynn;
- The president's awareness of and reaction to investigations by the FBI, the House and the Senate into possible collusion;
- The president's reaction to Attorney General Jeff Sessions' recusal from the Russia investigation;
- The president's reaction to former FBI Director James Comey's testimony on March 20, 2017, before the House Intelligence Committee;
- Information related to conversations with intelligence officials generally regarding ongoing investigations;
- Information regarding who the president had had conversations with concerning Mr. Comey's performance;
- Whether or not Mr. Comey's May 3, 2017, testimony lead to his termination;
- Information regarding communications with Ambassador Kislyak, Minister Lavrov, and Lester Holt;
- The president's reaction to the appointment of Robert Mueller as Special Counsel;
- The president's interaction with Attorney General Sessions as it relates to the appointment of Special Counsel; and,
- The statement of July 8, 2017, concerning Donald Trump, Jr.'s meeting in Trump Tower.