L’etat c’est moi o’ the day: If the president covers up his crimes it’s not illegal
by digby
He’s said he can’t have a conflict of interest and corruption laws do not apply to him. He’s said that he cannot endanger national security by spilling classified documents to adversaries.
Now he’s taking it to absolute limit:
President 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 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.
“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.”
Let’s be clear. That’s only because no president has ever said that he has the unfettered power to obstruct any investigation against him.
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, Mr. 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 Mr. 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.
Mr. 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 Mr. Trump refuses to be questioned, Mr. Mueller will have to weigh their arguments while deciding whether to press ahead with a historic grand jury subpoena.
Mr. Mueller had raised the prospect of subpoenaing Mr. Trump to Mr. 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, Rudolph W. Giuliani.
The attempt to dissuade Mr. Mueller from seeking a grand jury subpoena is one of two fronts on which Mr. 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.
Mr. 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.
Mr. Trump’s lawyers are gambling that Mr. 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.
Oh fergawsakes
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.”
Well, unless he got an unauthorized blow job in which case the whole government must come to a halt.
They have no shame.
This is really interesting. His lawyers are so lame that they relied on outdated legal precedents:
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.”
[…]But Mr. Trump could not have intentionally impeded the F.B.I.’s investigation, the lawyers wrote, because he did not know Mr. Flynn was under investigation when he spoke to Mr. Comey. Mr. Flynn, they said, twice told senior White House officials in the days before he was fired in February 2017 that he was not under F.B.I. 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, 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.
This is particularly stupid:
Mr. 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 Mr. Comey was fired, that he was thinking while he weighed the dismissal that “this Russia thing” had no validity. Mr. 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 Mr. 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 F.B.I.”
Right. Except for the fact that he was and remains obsessed with getting every authority to say he isn’t under investigation when he clearly is.
And then there was this little quote the day after he fired Comey:
President Trump told Russian officials in the Oval Office this month that firing the F.B.I. director, James B. Comey, had relieved “great pressure” on him, according to a document summarizing the meeting.
“I just fired the head of the F.B.I. He was crazy, a real nut job,” Mr. Trump said, according to the document, which was read to The New York Times by an American official. “I faced great pressure because of Russia. That’s taken off.”
Mr. Trump added, “I’m not under investigation.”
Tell Vlad the coast is clear …
Emperor Trump is being told by all of his sycophants that he is above the law. He believes it. And so that is how he is governing. It’s not just in this matter. It’s in everything even signaling that the jobs numbers are good in violation of one of the government and capital markets’ most sacred trusts. You know he must have told his kids and his buddies, right?
Republicans are all fine with this because they have always yearned to be subjects.
Update: Marcy Wheeler:
This “letter” is one of the most ridiculous pieces of legal sophistry I have ever seen in my life. It, without an iota of shame or self reflection, brazenly place Trump as not just a King, but a God like entity that far outstrips the importance of the rule of law or separation of powers the Founders intended.
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