Washington, D.C.: 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 offence.
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 Dowd and Jay Sekulow, the letter offers a rare glimpse into one side of the high-stakes negotiations over a presidential interview.
Although it is written as a defence 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 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 on 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.
Trump and his lawyers have also 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 offence, but an impeachable offence.”
Trump’s defence 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 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 scrutinising 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.
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.
