There are significant factual disputes about these episodes, but all involve the president’s exercise of his core constitutional powers as chief executive, including the power to appoint and remove high-level executive-branch officials, to supervise the performance of their duties (as in the Espy case), and to determine law-enforcement priorities. We have argued in these pages that the president cannot obstruct justice by exercising the discretionary powers of his office, especially in determining whether and why to fire high-level presidential appointees like Mr. Comey. According to the two leaked letters from Mr. Trump’s lawyers to Mr. Mueller, they take essentially the same view.
Any prosecution based on Mr. Trump’s exercise of his core constitutional authority would dramatically impair the executive’s status as a coequal branch of government, considering that Congress enjoys immunity under the Speech and Debate Clause while exercising its legislative powers. It would also inject the judiciary into the president’s decision-making process, requiring judges to delve into matters that are inherently political.
Developments over the past year reinforce our view that it would unconstitutionally debilitate the presidency to base an obstruction charge on gainsaying the president’s motives in exercising his core responsibilities. Mr. Trump’s critics have also accused him of obstructing justice by using his pardon power. They claim his pardons of Joe Arpaio, Scooter Libby and Dinesh D’Souza —whom he considers victims of previous political prosecutions—were meant to reassure targets of Mr. Mueller’s probe that they too might be pardoned. Under such logic, a president under investigation could not discharge his constitutional duties at all, including the use of military force overseas—which can always be cast as a “wag the dog” strategy.
.. That independent-counsel investigation did not concern the exercise of presidential authority. They concerned allegations of perjury and obstruction from Mr. Clinton’s personal relationship with a White House intern.
.. Because constitutional considerations were not in play
.. Mr. McGahn spent nearly 30 hours describing the substance of his conversations with Mr. Trump and offering his assessment that the president’s actions were lawful.
With access to the relevant documents and everyone around the president, the special counsel has no material facts left to find.
.. Interviewing or interrogating the president could shed additional light only on his own thoughts and motives—exactly what executive privilege is designed to protect.
.. Mueller knows that losing a subpoena court fight would prolong and delegitimize his investigation. He is unlikely to press the point.