Legal turduckens Jay Sekulow and John Dowd prepared a twenty page legal memo explaining why the President could not obstruct justice and therefore should not be interviewed by the Special Counsel as part of the Special Counsel’s ongoing investigation. Someone leaked it to The New York Times. And since Special Counsel Mueller and his staff never leak and officially have almost nothing to say that isn’t said in court filings or in court itself, it is most likely someone on or near the President’s legal team. And given the genius level legal representation that the President is both able to attract and retain, that likelihood is approaching certainty. The New York Times has the details:
In a brash assertion of presidential power, the 20-page letter — sent to the special counsel, Robert S. Mueller III, 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.”
Mr. 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.
Mr. 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 Mr. Mueller declined to comment.
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.
“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 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.
“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 Mr. 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.”
As one would expect of a legal memo produced by a well past his prime John Dowd and a never was grifter of the religiously devout Jay Sekulow, the memo is full of errors in legal reasoning. Again from The New York Times (emphasis mine):
“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, F.B.I. investigations do not qualify as the sort of “proceeding” an obstruction-of-justice 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,” Mr. Dowd and Mr. Sekulow wrote.
But the lawyers based those arguments on 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 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.
It's not exactly confidence inspiring on the part of @realDonaldTrump's lawyers that their statutory (as opposed to constitutional) analysis is focused on the _wrong_ federal obstruction-of-justice statute—18 U.S.C. § 1505 instead of 18 U.S.C. § 1512:https://t.co/4ZZ2jQ0Qrs https://t.co/EmKbvB25ES
— Steve Vladeck (@steve_vladeck) June 2, 2018
I award footnote 23 no points, and I’d like to see whoever thought they could get away with it in my office. https://t.co/SZykhRXezh pic.twitter.com/jJ7sbFzwwn
— southpaw (@nycsouthpaw) June 2, 2018
Under this logic, the president could open a booth on Pennsylvania Ave to accept bribes, people under federal investigation could stop by with a briefcase full of cash, and he could order their investigations closed—all without incurring any criminal liability for himself. pic.twitter.com/3WI2ZVff07
— southpaw (@nycsouthpaw) June 2, 2018
And my two favorite errors brought to us courtesy of Southpaw:
Not a fan of footnote 48. pic.twitter.com/PlandBYk73
— southpaw (@nycsouthpaw) June 2, 2018
hahahaha pic.twitter.com/9EyGNckz2T
— southpaw (@nycsouthpaw) June 2, 2018
Of course because Dowd should have stayed in retirement and Sekulow should have continued to fleece Pat Robertson’s flock, these aren’t the only errors. They admit in the memo that the President did, indeed, author the fraudulent statement for his son regarding the 9 June 2016 meeting at Trump Tower between Jr, Jared, Manafort, and a variety of Russian assets and agents.
For the first time, Trump’s lawyers say he dictated his son’s response to NYT over Russian lawyer meeting. They call the statement “short but accurate.” https://t.co/NJigLuXPfi
— Maggie Haberman (@maggieNYT) June 2, 2018
As David Corn writes, this has just further increased Jr’s legal jeopardy.
The sentence is also striking in that it undercuts the veracity of Trump Jr.’s testimony to Congress.
Then Trump Jr., according to the transcript, which was recently released, was asked about the Washington Poststory noting that his father had actually drafted that statement. This exchange ensued:
Q. The Washington Post has since reported that your father was involved in drafting your July 8th statement. Isthat correct?
A. I don’t know. I never spoke to my father about it.
Q. Do you know who did draft that statement?
A. Well, there were numerous statements drafted with counsel and other people were involved and, you know, opined.
Q. To the best of your knowledge, did the President provide any edits to the statement or other input
A. He may have commented through Hope Hicks.
Q. And do you know if his comments provided through Hope Hicks were incorporated into the final statement?
A. I believe some may have been,but this was an effort through lots of people, mostly counsel.
Q. Did you ask him to provide any assistance with the statement?
A. No. She asked if I wanted to actually speak to him, and I chose not to because I didn’t want to bring him into something that he had nothing to do with.
Trump Jr. certainly did not inform the committee that his father had dictated the statement. In fact, he made it seem as if Trump was marginally involved, if at all. Yet according to the letter written by Trump’s own lawyers, Trump was in charge of the statement.
Trump Jr.’s remarks to the committee conveyed an inaccurate impression and can be seen as an attempt to provide cover for his pop. They might even be considered false statements. By the way, it’s a crime to lie to Congress.
As was noted in The New York Times reporting:
A spokesman for Mr. Mueller declined to comment.
Open thread!
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