This past weekend the New York Times released a lengthy January 29, 2018 letter from Trump’s lawyers to Robert Mueller. In many ways, the letter reads like a typical pre-indictment pitch from defense attorneys trying to persuade a prosecutor not to indict their client. But of course because it involves the president – and because the president is Donald Trump – in other ways the letter is anything but typical. Most notable is the letter’s claim that the president has essentially monarchial power over the justice system, including the power to shut down investigations into his own potential criminal conduct.
The letter concerns only arguments about obstruction of justice. It does not address any of the issues surrounding alleged collusion (or conspiracy) with Russians to influence the election. This may be consistent with earlier reports that Mueller was dealing with the two areas separately and was trying to conclude the obstruction investigation first.
In addition, the letter is captioned “Re: Request for Testimony on Alleged Obstruction of Justice.” So although it reads like a brief on why the president should not be charged with obstruction, its primary purpose actually is to present the defense case for why the president should not submit to an interview by the special counsel.
Factual Arguments in the Letter
Most of the letter is devoted to arguing about the facts – what the defense believes the evidence shows, how to interpret certain events, and why they believe prosecutors would be unable to prove any criminal violations. For example, it discusses the defense view of the evidence regarding the firing of Michael Flynn, the firing of James Comey, and the president’s role in drafting a misleading statement to the New York Times about the infamous June 2016 meeting at Trump Tower.
This is pretty standard fare in a presentation by defense attorneys trying to persuade prosecutors not to charge their client. The defense presents the facts in the light most favorable to their client and offers prosecutors an alternative, innocent interpretation of the events under investigation. It’s also a shot across the bow telling the prosecutors, “If you go forward, this is what you’re going to face at trial – and it’s not going to end well for you.”
Some of the factual arguments in the letter have some force. For example, the letter discusses Trump’s television interview with Lester Holt and the defense view that it has been mischaracterized as Trump admitting he fired Comey because of the Russia investigation. I made similar points in this post, where I noted that, based on the available evidence, an obstruction case based on Comey’s firing is far from a slam dunk. In my view, anyone who suggests otherwise either has never prosecuted cases or is engaged in wishful thinking.
Arguments About the Law of Obstruction
In contrast to some of the factual arguments, a number of the letter’s legal arguments concerning obstruction of justice law are either mistaken or very weak. For example, the only obstruction of justice statute the defense discusses is 18 U.S.C. 1505, which applies to obstruction of administrative and Congressional proceedings. The letter argues (correctly) that 1505 requires that a proceeding is already pending at the time of the obstruction and that an FBI investigation does not qualify as a “proceeding.” Accordingly, the defense claims, because an FBI investigation was the only thing pending when Trump fired Comey or urged him to drop the Flynn investigation, there could be no obstruction.
This argument ignores a newer and more comprehensive obstruction of justice statute, 18 U.S.C. 1512, which is the statute that prosecutors almost certainly would rely upon. Under 1512 a proceeding need not yet be pending, so long as the defendant has a particular proceeding in mind at the time of the obstructive act. In other words, if prosecutors could prove that Trump was thinking about obstructing a grand jury investigation into his campaign when he fired Comey, under 1512 it would not matter whether the grand jury proceeding had actually begun. Yet the letter fails to discuss section 1512 at all.
The defense also suggests there could be no obstruction related to Michael Flynn because his prosecution ultimately was successful and resulted in a guilty plea. But this is not a legal defense – obstruction of justice does not have to succeed to be criminal. All the statute requires is that the defendant endeavored to obstruct justice.
The letter also suggests there could be no obstruction related to the investigation of Michael Flynn because the president himself was not under investigation. This is a complete non sequitur – whether the president himself was being investigated is irrelevant to whether he could obstruct the investigation of someone else.
When it comes to several of their statutory arguments, the defense seems to be flailing and is not at all convincing.
Arguments About the Need for an Interview
The primary purpose of the letter is to present the defense case for why the president should not submit to an interview. The letter claims that “under our system of government, the President is not readily available to be interviewed.” It argues the White House has been extremely cooperative and Mueller already has so much information from other sources that interviewing the president is unnecessary. It also argues the interview would interfere with the president’s duties, and even claims the special counsel’s investigation is such a distraction that it “has endangered the safety and security of our country.”
Mueller is not going to be persuaded by these arguments. Regardless of other sources of information, there is no substitute for talking to the president himself. Particularly when it comes to questions of intent – which are central to any obstruction investigation – no one but Trump knows exactly what he was thinking when he did things like fire James Comey.
During the Supreme Court arguments about the Paula Jones case, president Clinton’s lawyers argued that allowing a civil sexual harassment case to proceed would be too great a distraction and would interfere with his presidential duties. I recall Justice Scalia saying something like, “Well, I see pictures of him playing golf all the time, surely he has time to sit for a deposition?” The Court went on to rule against Clinton, holding that the case could proceed and he could be deposed. Lawyers for president Trump, who spends a great deal of time golfing, Tweeting, and watching cable news, will have a hard time convincing a judge that he is too busy to be interviewed by the special counsel.
I still think the president is unlikely to agree to a voluntary interview, for reasons I’ve explained here and here. Indeed, this letter may have been leaked now by the defense as part of laying the public groundwork for the president’s ultimate refusal to be interviewed. But his lawyers are not going to successfully persuade Mueller that he should just drop the request, and are unlikely to persuade a court that the interview is unnecessary or inappropriate.
Can the President Obstruct Justice?
The president’s attorneys argue that Trump could not possibly be charged with obstruction for interfering with the Russia investigation because he has the constitutional authority to terminate any federal criminal investigation “at any time and for any reason.” This is not a new argument. The president’s lawyers have been claiming for months that he could not be charged with obstruction for a constitutionally authorized act such as firing the FBI director or granting a pardon, even if he clearly did so in order to head off a criminal investigation into his own conduct.
I’ve explained in detail elsewhere why I believe these arguments are wrong. Otherwise legal acts can become obstruction of justice if done with corrupt intent. Michael Cohen has the right to shred his own files, but if he shreds them as the FBI is breaking down his door because he doesn’t want the agents to see them, that otherwise lawful act becomes obstruction of justice. Similarly, the president has the power to fire the FBI director or grant a pardon, but not if he does it to shield himself from criminal investigation.
The letter is sweeping in its claim of presidential immunity from obstruction. To charge the president with obstruction of justice, the letter claims, would be essentially to charge him with “obstructing himself.” This remarkable statement is the fundamental misconception at the heart of the defense argument. In totalitarian regimes the president may define justice for himself, and the law may be whatever the president says it is. But in the United States the justice system is bigger than the president. He is not free to manipulate that system to shield himself from criminal responsibility.
The Appropriate Remedy for Presidential Misconduct
It’s possible to view the ongoing arguments about legal remedies for presidential misconduct — including those in the letter — as simply a question of timing. There is a legitimate debate over whether a sitting president can be indicted, and many, including the Office of Legal Counsel at the Department of Justice, believe the answer is no. But the Constitution specifies that an impeached official remains subject to criminal prosecution after removal from office. One can argue, therefore, that the appropriate procedure is impeach, remove, and then prosecute.
This seems to be the argument advanced at times by the president’s current lawyer Rudy Giuliani. For example, Giuliani recently told the Huffington Post that even if Trump had shot former FBI director James Comey rather than firing him the only remedy would be impeachment — but once impeached, “then you can do whatever you want to do to him.” Contrary to some claims, Giuliani was not asserting that the president could get away with murder – only that he would have to be removed from office before a prosecution could proceed.
If the argument is just about timing of any prosecution, it’s easier to be sanguine about the end result. After all, if the system works, justice will ultimately be served. But when it comes to obstruction of justice, the president’s lawyers take a more extreme position. It’s not that a prosecution must wait until the president is removed from office – it’s that the president, by virtue of his office, is legally incapable of obstructing justice. Even if Trump fired Mueller, shut down the Russia investigation, and stood in the middle of Fifth Avenue proclaiming he had done it to hide his own criminal conduct, that would not, according to the defense, be obstruction of justice.
If Trump took a bribe to drop an investigation or ordered a witness killed, his lawyers presumably would agree he could be prosecuted for bribery or murder after being removed from office. But their argument about obstruction necessarily means it would be legal for Trump to order the Department of Justice not to investigate his crimes. Even if he were impeached and removed from office, whatever other charges he might face, he could not be prosecuted for obstruction for trying to thwart the investigations into his own actions.
If a president can legally shut down any investigation that might implicate him, now we are no longer arguing just about the timing of criminal remedies. Stopping the investigation entirely may prevent the facts that could lead to impeachment and prosecution from ever coming to light in the first place.
The argument that the appropriate remedy is “impeach, then prosecute,” also assumes a legislative branch willing to do its job and not tolerate presidential misconduct. A supine Congress uninterested in investigating the president on its own may not be a reliable check on executive power. Thus the claimed authority to halt any investigation at any time for any reason could well end up meaning a criminal president suffers no consequences at all, legal or political.
Also thrown into the mix is the pardon power, which is also mentioned in the letter. Trump has recently issued several pardons, talked about issuing others, and has even claimed he has the power to pardon himself. If Trump were to begin pardoning potential witnesses against him, that could be further evidence of obstruction justifying impeachment and potential criminal charges — although the pardons themselves would likely stand.
Fortunately Trump is a president, not a king, and most legal authorities reject the sweeping assertions of presidential power made in the letter. Trump’s lawyers are making an aggressive pitch as part of their negotiations with the special counsel. But their claim that the president is above the law is unlikely to be accepted in any court – including the court of public opinion.
Like this post? Click here to join the Sidebars mailing list