Rudy Giuliani tells Axios that his client, President Trump, is currently willing to speak to Special Counsel Robert Mueller on the condition that he not be asked about two subjects: why Trump fired FBI director James Comey, and what Trump said to Comey about the investigation of former national security adviser Michael Flynn.
You might wonder if the specificity of this demand sounds just a wee bit suspicious, as if Trump’s lawyers are pointing frantically at a locked door at a crime scene and shouting “Don’t go in there!” You would be right.
.. The Russia scandal has followed an eerily similar fact pattern to Watergate. Both cases feature as the central underlying crime the burglary of private files from the Democratic National Committee in order to give Republicans an advantage in a presidential campaign. Both cases also feature the president leaning on the FBI to quash an investigation that might connect the burglary to the president and his inner circle.
.. We are accustomed — not only by Watergate but by every criminal or detective drama — to expect evidence to mount to a crescendo over time. Nobody knows quite how to respond to the spectacle of a president committing high crimes and misdemeanors in his first few weeks in office, and then simply confessing to them casually in a subsequent television interview.
.. A perjury trap is a real thing. The term describes when prosecutors lure a witness into giving false testimony, usually for reasons other than covering up a crime, knowing they can prove the claim was false, and then nail them for perjury.
.. The impeachment of President Clinton was a classic perjury trap. Special Prosecutor Ken Starr asked the president about an affair with Monica Lewinsky, knowing Clinton — like most people who have affairs, especially politicians — would lie about it.
.. Asking Trump about his attempt to manipulate his FBI director is not a perjury trap. The question is not extraneous to a crime, it is a crime. He was very consciously attempting to stop an investigation into his administration. The mere fact that his lawyers are discussing it well in advance indicates that the subject matter is not a perjury trap, because the “trap” aspect involves the witness not knowing beforehand that the question is designed to produce a lie.
Trump’s lawyers have presumably concluded that they have no defense of his obstruction of justice. Faced with a choice between admitting to obstruction of justice, or denying it and risking perjury, Trump’s choice is to avoid the question altogether.
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.
.. 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. Giuliani said in an interview that Mr. Trump is telling the truth but that investigators “have a false version of it, we believe, so you’re trapped.”
.. “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.”
That constitutional claim raises novel issues, according to legal experts. Under the Constitution, the president wields broad authority to control the actions of the executive branch. But the Supreme Court has ruled that Congress can impose some restrictions on his exercise of that power, including by upholding statutes that limit his ability to fire certain officials. As a result, it is not clear whether statutes criminalizing obstruction of justice apply to the president and amount to another legal limit on how he may wield his powers.
.. The letter does not stress legal opinions by the Justice Department in the Nixon and Clinton administrations that held that a sitting president cannot be indicted, in part because it would impede his ability to carry out his constitutional responsibilities. But in recent weeks, Mr. Giuliani has pointed to those memos as part of a broader argument that, by extension, Mr. Trump also cannot be subpoenaed.
Subpoenas of the president are all but unheard-of. President Bill Clinton was ordered to testify before a grand jury in 1998 after requests for a voluntary appearance made by the independent counsel, Kenneth W. Starr, went nowhere.
To avoid the indignity of being marched into the courthouse, Mr. Clinton had his lawyers negotiate a deal in which the president agreed to provide testimony as long as it was taken at the White House and limited to four hours. Mr. Starr then withdrew the subpoena, avoiding a definitive court fight.
In making their arguments, Mr. Trump’s lawyers also revealed new details about the investigation. They took on Mr. Comey’s account of Mr. Trump asking him privately to end the investigation into Mr. Flynn. Investigators are examining that request as possible obstruction.
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.
They went beyond asserting Mr. Trump’s innocence, casting him as the hero of the Flynn episode and contending that he deserved credit for ordering his aides to investigate Mr. Flynn and ultimately firing him.
“Far, far, from obstructing justice, the only individual in the entire Flynn story that ensured swift justice was the president,” they wrote. “His actions speak louder than any words.”
The lawyers acknowledged that Mr. Trump dictated a statement to The Times about the 2016 Trump Tower meeting between some of his top advisers and Russians who were said to have damaging information about Hillary Clinton. Though the statement is misleading — in it, the president’s eldest son, Donald Trump Jr., said he met with Russians “primarily” to discuss adoption issues — the lawyers call it “short but accurate.”
.. Mr. Mueller is investigating whether Mr. Trump, by dictating the comment, revealed that he was trying to cover up proof of the campaign’s ties to Russia — evidence that could go to whether he had the same intention when he took other actions.
The president’s lawyers argued that the statement is a matter between the president and The Times — and the president’s White House and legal advisers have said for the past year that misleading journalists is not a crime.
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.”
For months we’ve heard President Trump’s TV lawyers, as he calls them, bandy about the argument that he — or any president, for that matter — couldn’t have obstructed justice because justice is what he says it is.
In other words, that because, they claim, a president possesses absolute power to cut short a criminal investigation, he cannot by definition be guilty of obstructing it. Or, in the famous Nixonian formulation, as Richard M. Nixon told David Frost, “Well, when the president does it, that means that it is not illegal.”
.. The precise context involved the president’s discussion with then-FBI Director James B. Comey in which, according to Comey’s testimony, Trump cleared the Oval Office of other witnesses before discussing his just-fired national security adviser, Michael Flynn. According to Comey, Trump expressed his “hope you can see your way clear to letting this go, to letting Flynn go.”
.. The letter disputes Comey’s version of events but says it wouldn’t matter if Trump had made those statements. And then, in a magnificently gaslighting move, the letter claims that Trump is actually the hero of any obstruction story, because he fired Flynn: “Far, far, from obstructing justice, the only individual in the entire Flynn story that ensured swift justice was the President.”
.. the notion that the president could peremptorily call off any prosecution for any reason whatsoever — no matter how corrupt — would be laughable if it weren’t so scary.
According to Comey’s account in a new memoir, Trump “strongly denied the allegations, asking — rhetorically, I assumed — whether he seemed like a guy who needed the service of prostitutes. He then began discussing cases where women had accused him of sexual assault, a subject I had not raised. He mentioned a number of women, and seemed to have memorized their allegations.”
The January 2017 conversation at Trump Tower in Manhattan “teetered toward disaster” — until “I pulled the tool from my bag: ‘We are not investigating you, sir.’ That seemed to quiet him,” Comey writes.
Trump did not stay quiet for long. Comey describes Trump as having been obsessed with the prostitutes portion of the infamous dossier compiled by former British intelligence officer Christopher Steele, raising it at least four times with the FBI head.
.. Trump offered varying explanations to convince Comey it was not true. “I’m a germaphobe,” Trump told him in a follow-up call on Jan. 11, 2017, according to Comey’s account. “There’s no way I would let people pee on each other around me. No way.” Later, the president asked what could be done to “lift the cloud” because it was so painful for first lady Melania Trump.
.. In his memoir, Comey paints a devastating portrait of a president who built “a cocoon of alternative reality that he was busily wrapping around all of us.” Comey describes Trump as a congenital liar and unethical leader, devoid of human emotion and driven by personal ego.
.. Interacting with Trump, Comey writes, gave him “flashbacks to my earlier career as a prosecutor against the Mob.
The silent circle of assent.
The boss in complete control.
The loyalty oaths.
The us-versus-them worldview.
The lying about all things, large and small, in service to some code of loyalty that put the organization above morality and above the truth.”
.. The result, in Comey’s telling, is “the forest fire that is the Trump presidency.”
.. “You can’t be kicked out of the room so he can talk to me alone,” Comey told Sessions, according to the book. “You have to be between me and the president.”
.. “Sessions just cast his eyes down at the table, and they darted quickly back and forth, side to side. He said nothing. I read in his posture and face a message that he would not be able to help me.”
.. Comey delivers an indirect but unmistakable rebuke of the GOP’s congressional leaders as well: “It is also wrong to stand idly by, or worse, to stay silent when you know better, while a president brazenly seeks to undermine public confidence in law enforcement institutions that were established to keep our leaders in check.”
.. “I have one perspective on the behavior I saw, which while disturbing and violating basic norms of ethical leadership, may fall short of being illegal,” he writes.
.. “They lose the ability to distinguish between what’s true and what’s not,” Comey writes. “They surround themselves with other liars . . . Perks and access are given to those willing to lie and tolerate lies. This creates a culture, which becomes an entire way of life.”
.. Comey also writes that in a post-election briefing for senators, then-Sen. Al Franken (D-Minn.) confronted him about “what you did to Hillary Clinton.” Comey responded, “I did my best with the facts before me.” A teary-eyed Senate Minority Leader Charles E. Schumer (D-N.Y.) grabbed him by the hand afterward and said, “I know you. You were in an impossible position,” Comey writes.
.. Comey is critical of then-Attorney General Loretta E. Lynch, saying she had a “tortured half-out, half-in approach” to the Clinton investigation and that he considered calling for the appointment of a special prosecutor.
.. “As he extended his hand,” Comey adds, “I made a mental note to check its size. It was smaller than mine, but did not seem unusually so.”
.. Comey recalls being struck that neither Trump nor his advisers asked about the future Russian threat, nor how the United States might prepare to meet it. Rather, he writes, they focused on “how they could spin what we’d just told them.”
.. “I decided not to tell him that the activity alleged did not seem to require either an overnight stay or even being in proximity to the participants,” Comey writes. “In fact, though I didn’t know for sure, I imagined the presidential suite of the Ritz-Carlton in Moscow was large enough for a germaphobe to be at a safe distance from the activity.”
.. Comey writes that he believed Trump was trying “to establish a patronage relationship,” and that he said: “I need loyalty. I expect loyalty.”
.. Trump broke the standoff by turning to other topics, Comey writes, speaking in torrents, “like an oral jigsaw puzzle,” about the size of his inauguration crowd, his free media coverage and the viciousness of the campaign. He talked about the Clinton email investigation as in three phases, as if it were a television series: “Comey One,” “Comey Two” and “Comey Three.” Trump also tried to convince Comey that he had not mocked disabled New York Times reporter Serge Kovaleski at a campaign rally, and then turned to the detailed allegations of sexual assault against him.
“There was no way he groped that lady sitting next to him on the airplane, he insisted,” Comey writes. “And the idea that he grabbed a porn star and offered her money to come to his room was preposterous.”
.. And then Trump brought up “the golden showers thing,” Comey writes. The president told him that “it bothered him if there was ‘even a one percent chance’ his wife, Melania, thought it was true.” Comey writes that Trump told him to consider having the FBI investigate the prostitutes allegation to “prove it was a lie.”
.. As the dinner concluded, Trump returned to the issue of loyalty.
“I need loyalty,” Trump tells Comey, according to the book.
“You will always get honesty from me,” Comey replies.
“That’s what I want, honest loyalty,” Trump said, reaching what Comey writes was “some sort of ‘deal’ in which we were both winners.”
.. The president, Comey recalls, “launched into one of his rapid-fire, stream-of-consciousness monologues” — this time about a recent Super Bowl interview with then-Fox News Channel personality Bill O’Reilly in which Trump complimented Russian President Vladimir Putin.
.. “But he’s a killer,” O’Reilly told Trump.The president’s reply: “There are a ton of killers. We’ve got a lot of killers. What do you think? Our country’s so innocent?”
Trump fumed to Comey about the media criticism he received.
“I gave a good answer,” Trump said, according to Comey. “Really, it was a great answer. I gave a really great answer.”
Trump sought validation: “You think it was a great answer, right?”
Comey replied, “We aren’t the kind of killers that Putin is.”
Trump apparently did not take the correction well. Comey writes that the president’s eyes changed and his jaw tightened, and Priebus escorted him out.
.. Comey describes soon receiving an “emotional call” from Homeland Security Secretary John F. Kelly.
“He said he was sick about my firing and that he intended to quit in protest,” Comey writes. “He said he didn’t want to work for dishonorable people who would treat someone like me in such a manner. I urged Kelly not to do that, arguing that the country needed principled people around this president. Especially this president.”
Kelly did not resign. Two and a half months later, he was named White House chief of staff.