To survive the riskiest battle of his presidency, Trump is skipping the legal minutiae and pulling out his fighting gloves.
For a president steeped in marketing and branding, impeachment offers new terrain on which to run the Trump playbook of defining an issue, waging war and then never backing down.
And the White House’s new strategy of treating impeachment primarily as a political argument puts President Donald Trump directly into his comfort zone.
Trump allies are the first to admit it’s not a strategy born out of any major legal thinking. Instead, it’s a bet Trump can prevail through his own aggressive public messaging campaign and the help of the Republican-controlled Senate, which ultimately would have to vote on the president’s fate following an impeachment trial.
George Washington University law professor who has participated in prior impeachment cases before Congress. “Many of the latest positions laid out in the letter undermine the White House’s best legal arguments.”
The White House letter to House Speaker Nancy Pelosi, sent on Tuesday night, said the administration will not cooperate in any way with the Democrats’ investigation. The letter argued the Democrats’ inquiry was invalid because liberals have long sought to discredit Trump since his election in 2016, and this was only the latest salvo.
Democrats launched the inquiry after a whistleblower complaint and White House summary transcript showed Trump asking the Ukrainian president to investigative his political rival ahead of the 2020 presidential campaign, a move Democrats say undermines national security and foreign interference in U.S. elections.
“The lawyers are dealing with a client who wants to see this type of aggressive and, frankly, reckless public banter,” Turley said, referring to the strong rhetoric laid out in that White House letter. “There has never been any evidence of the legal team being the driving force behind the White House’s public statement or strategy. At some point, they will have to mount a legal defense.”
Hiring former Rep. Trey Gowdy as an outside legal adviser was another sign of the political dimensions shaping the White House fight. While Gowdy served as federal prosecutor and district attorney in South Carolina, he’s also known for his partisan and aggressive leadership of the House Oversight Committee and his Fox News commentary.
White House officials expect Gowdy to play the role of made-for-TV surrogate during the impeachment fight, offering political advice, communication skills and “trench warfare” expertise, a senior administration official said. The president was excited he was joining the team, a second aide said.
Among Trump allies and White House officials, there’s also talk of Gowdy potentially managing the White House’s war room to steer the political and communications response, a Republican close to the White House said.
But Gowdy is not expected to be brought into the inner circle of the White House counsel’s office, over which top attorney Pat Cipollone has kept a tight grip.
“The counsel’s office wants to concentrate the flow of information as much as possible. They keep a narrow circle on this. Lawyers do not like others meddling,” said the Republican close to the White House.
In addition to the roughly 40 lawyers within the White House counsel’s office, the president is also receiving legal and communication advice from Rudy Giuliani and Jay Sekulow, the law firm of Consovoy McCarthy, and Marc Mukasey, a criminal trial lawyer based in New York, according to a second Republican close to the White House.
These attorneys maintain that the Democratic impeachment inquiry amounts to political theater and an abuse of process.
That argument also conveniently gives Senate Republicans an out, said one of the Republicans close to the White House. “The senators will not have to address the merits of the impeachment investigation. All they will have to say is that this is a charade. Why should I spend a moment on the merits?” this person said.
White House officials and Trump allies argue the administration’s letter to the House does contain legal arguments, despite any skepticism from constitutional law experts.
Officials say the White House has not received due process during the impeachment inquiry, an argument laid out in detail in the letter, including the ability to cross-examine and call witnesses and access evidence and transcripts of testimony.
“Let me just say: The Republican Party and president has been treated extremely badly by the Democrats, very unfairly, because they have a tiny margin in the House. They have eviscerated the rules. They don’t give us any fair play,” Trump told reporters on Wednesday at an event in the Roosevelt Room of the White House. “It is the most unfair situation people have seen.”
Trump added that the White House would cooperate with House Democrats if they held a formal impeachment vote and “if they give us our rights.” He also said the impeachment inquiry will likely end up being decided by the Supreme Court.
Republican lawyers and Trump allies overwhelmingly believe the Republican-controlled Senate will decide the fate of the Trump presidency.
For now, the White House is leaning into its aggressive political strategy of stonewalling the Democrats. They hope the approach will slow the Democrats’ inquiry and sap its momentum, so much so that Americans either become confused about the procedural details or lose interest. Polling now shows a majority of Americans favor the impeachment proceedings.
“What legal strategy?” said a third Republican close to the White House. “It’s a delay strategy to force the Democrats to impeach on procedural grounds of obstructing the investigation. There won’t be a court battle because the Democrats have no need to go to court, they will impeach for failing to provide documents.”
As president, Donald Trump has uttered more than 4,000 falsehoods or misleading statements. And the spokespeople and advisers tasked with squaring Trump’s version of reality with actual reality must often contort themselves accordingly.
.. On Sunday, they tried a couple of new tacks: asserting that “facts develop” and saying that the president “misspoke” — while saying something he has said dozens of times.
.. George Stephanopoulos challenged the president’s personal attorney Jay Sekulow on two past, disproven assurances that Trump hadn’t authored the initial, misleading statement about it. (That statement said the meeting was “primarily” about the adoption of Russian children.)
.. Facts might have “developed” from Sekulow’s perspective, but the actual events never changed. Either Trump didn’t tell him the truth about his role in drafting that statement, or Sekulow and Sanders offered assurances that were basically made-up. That “bad information” came from somewhere — either Trump or thin air.
.. John Bolton offered another extremely hard-to-stomach explanation for Trump’s soft stance toward Vladimir Putin on Russia’s interference in the 2016 U.S. election, saying Trump merely “misspoke”:
.. why not stand there right alongside Putin, with the whole world watching and say, we are not going to stand for any more meddling?
BOLTON: Well, as the president said, he misspoke.
.. Trump has also said that he misspoke at the news conference with Putin — but not at this juncture. He said that when he said “I don’t see any reason why it would be” Russia, he meant to say wouldn’t instead.
As the video clip Wallace played shows, that was hardly the only moment in the joint news conference with Putin in which Trump played down the idea that Russia interfered. Bolton was responding not to Trump saying “I don’t see any reason why it would be” Russia but to his insistence that “President Putin was extremely strong and powerful in his denial today.” Trump has never said he misspoke about that.
.. And that really gives lie to this whole thing. Trump has downplayed Putin’s interference so many times over the past 18 months that he would have had to be misspeaking almost constantly. It’s clear what he truly believes or at least wants to convey — even if aides can occasionally reel him back in slightly.
.. each and every one of them also has the side effect of undermining the credibility of the spokespeople who, in neither of these cases, must truly believe the things they are saying.
While “collusion” is not mentioned in U.S. criminal statutes, Mueller is investigating whether anyone associated with Trump coordinated with the Russians, which could result in criminal charges if they entered into a conspiracy to break the law, including through cyberhacking or interfering with the election.
.. He concluded by further distancing himself from the meeting his son arranged, writing, “I did not know about it!”
.. On Sunday, one of the president’s attorneys defended the 2016 meeting as something that would not have been illegal under any federal statute.
“The question is: How would it be illegal?” Jay Sekulow asked on ABC News’s “This Week,” suggesting that there are no laws prohibiting campaign operatives from meeting and working with foreign agents. “Nobody’s pointed to one.”
.. The president’s attorneys at first denied Trump’s involvement in drafting the response to the Times, but months later, in a letter intended to explain why Mueller should not interview Trump, they agreed that the president had, in fact, been the author of the statement.
.. They described the statement, which had not mentioned that the Russian lawyer was expected to bring damaging information about Clinton, as “short but accurate.”
And they said Trump Jr., Kushner and White House staffers had made a “full disclosure” about that session to Mueller and Congress.
For nearly a year, the denials from President Trump’s lawyers and spokeswoman were unequivocal. No, the president did not dictate a misleading statement released in his son’s name.
“He certainly didn’t dictate,” said the White House press secretary, Sarah Huckabee Sanders.
“The president was not involved in the drafting of that statement,” his lawyer Jay Sekulow told NBC News.
.. But in a confidential, hand-delivered memo to the special counsel, Mr. Trump’s lawyers acknowledged that, yes, Mr. Trump had dictated the statement.
.. Prosecutors are asking whether the statement was part of an effort by the president to obstruct a federal investigation.
.. it highlights a communication strategy that the White House has used repeatedly: deny facts, attack news outlets and dismiss journalism as “fake news.”
Late last year, for example, reporters revealed a White House plan to fire the secretary of state, Rex W. Tillerson, and replace him with the C.I.A. director, Mike Pompeo. Not so, Mr. Trump angrily replied, dismissing the stories as fake news. Ultimately, Mr. Trump fired Mr. Tillerson, replaced him with Mr. Pompeo and said he had been talking about doing so “for a long time.”
.. Rudolph W. Giuliani, the president’s personal lawyer, acknowledged as much in an ABC News interview this weekend, even as he blamed the string of false statements on faulty memory and incorrect assumptions. “This is the reason you don’t let the president testify,” Mr. Giuliani said. “Our recollection keeps changing, or we’re not even asked a question and somebody makes an assumption.”
.. But Mr. Trump’s team was asked the question, again and again, by multiple reporters. The answer was consistent. Then on Monday, Ms. Sanders refused to answer the question or address her previous denial. “I’m not going to get into a back-and-forth,” she said
.. But when approached by journalists, the younger Mr. Trump issued a statement that omitted all of that. Instead, the statement said that the meeting had primarily been about Russian adoption policy. When The Times reported that the president himself had “signed off on” the statement, Mr. Trump’s advisers pushed back hard.
“They’re incorrect,” Mr. Sekulow said on CNN.
“The New York Times is wrong?” he was asked.
“Yeah, I know, is that shocking that sometimes they make a mistake?” Mr. Sekulow said.
.. Then The Washington Post reported that Mr. Trump had not only approved it, but had personally dictated it. Mr. Sekulow responded, “Apart from being of no consequence, the characterizations are misinformed, inaccurate and not pertinent.”
.. The Times has since obtained a confidential memo to Mr. Mueller acknowledging that “the president dictated a short but accurate response to The New York Times article on behalf of his son, Donald Trump, Jr.”
.. Mr. Trump has for years held the view that fudging the facts with journalists is far from a federal offense, and has acknowledged as much in civil lawsuits. He has acknowledged practicing what he calls “truthful hyperbole,” and has waved away outright falsehoods, dismissing them as smart public relations.
.. After his firing, Mr. Tillerson delivered a barely veiled criticism of his former boss’s trustworthiness, declaring that American democracy was threatened by a crisis of integrity. “When we as people, a free people, go wobbly on the truth even on what may seem the most trivial matters, we go wobbly on America,”
.. Mr. Trump has said he is eager to sit for an interview. He told reporters in January that he expected to do so within “two to three weeks.”
That did not happen, and his lawyers are not sure it ever will.
Dowd was just the latest of several lawyers who have bailed on Trump. His longtime lawyer, Marc Kasowitz, was early on board and early to abandon ship — though he might yet come back. He, too, favored an aggressive strategy that, to Dowd and others, was sheer foolishness. At the moment, Trump’s team is led by Jay Sekulow, who has argued many times before the Supreme Court but has never tried a criminal case in his life. As is typical for a Trump aide, he has often appeared on Fox News. This, though, is not the same as courtroom experience.
President Trump, whose top attorney handling the Russia probe resigned Thursday, is struggling to find top-notch defense lawyers willing to represent him in the case, according to multiple Trump advisers familiar with the negotiations.
.. John Dowd, the president’s chief lawyer in handling the Mueller probe since last year, quit Thursday morning after several strategy disputes with the president, who ultimately lost confidence in the veteran lawyer
.. Dowd also had been negotiating the terms for the president to sit for an interview with Mueller’s team ..
.. The struggles are reminiscent of Trump’s difficulties in the spring of 2017 when the president was first seeking new attorneys to represent him in the Russia probe. He interviewed a half-dozen high-profile legal stars in the white-collar defense bar, including Flood, Brendan V. Sullivan Jr. and A.B. Culvahouse Jr.; all of them declined.
.. “These major law firms have spent millions of dollars on their image,” said one Trump adviser, who also spoke on the condition of anonymity. “It’s political. They are saying that representing this president is just too controversial.”
.. Aside from being controversial, aides said Trump has proved to be a difficult client, as Dowd learned firsthand.
.. Dowd complained to colleagues that Trump had ignored his advice and tweeted attacks on Mueller and other topics hours after Dowd and other advisers urged him not to
.. Dowd also said he was personally insulted by the president’s efforts to hire other lawyers. One person familiar with the dynamics said Trump frequently praised his legal team to their faces but criticized them when they were not around.
.. But privately, Dowd was “blindsided” when the president interviewed Flood and again when Trump announced he was adding conservative lawyer and attack-dog Joseph diGenova to the team last week.
.. One Trump adviser said the president berated Dowd for not doing enough to, in the president’s view, highlight corruption and political bias in the FBI to undercut the legitimacy of the Mueller probe. Trump told Dowd he wanted to tweet that the firing of deputy FBI director Andrew McCabe was another reason the Mueller probe should be shut down, the adviser said.
.. At 10 a.m. Thursday, Dowd resigned without consulting Trump ..
.. Aides said they were unsuccessful in asking him to hold off until they could confer with the president and prepare a statement.
.. A huge bone of contention between Trump and his team has been over testifying in front of Mueller’s team, these people said. Trump wants to do so, thinking he can talk his way out of it, while his lawyers are far more wary,
.. Dowd and Marc Kasowitz, Trump’s former lawyer whom he still occasionally consults, have told Trump he could damage himself by testifying. His chief White House counsel, Donald McGahn, also has chafed at Trump granting an interview and has criticized others on the team.
.. Trump has groused to friends and aides that he thinks his lawyers are weak and that his New York attorneys are tougher and better.
Earlier this month, Trump dubbed news reports of trouble on his legal team as inaccurate.
“The Failing New York Times purposely wrote a false story stating that I am unhappy with my legal team on the Russia case and am going to add another lawyer to help out,” Trump tweeted March 11. “Wrong. I am VERY happy with my lawyers, John Dowd, Ty Cobb and Jay Sekulow. They are doing a great job.”
.. Eight days later, the president hired diGenova, and Dowd is now off the team.
Democrats have argued that such calls are simply an effort to undermine the ongoing Russia investigation. Sessions, moreover, has a serious ethical problem he refuses to acknowledge: He has already recused himself from anything involving the Russia probe, as well as from anything involving the 2016 Trump and Clinton campaigns. Appointing and overseeing a special counsel assigned to investigate conduct related to the Russia investigation would seem to be a direct violation of that recusal.
.. Enter President Trump’s lawyer, who took to his radio show Thursday to urge Sessions to make the appointment and to repeatedly insist that Sessions’ recusal shouldn’t stop him from doing so.
.. Sekulow is also the chief counsel for the conservative American Center for Law and Justice, and he hosts a weekday radio show that he’s used to attack the Mueller investigation.
.. Without saying so explicitly, their letter also suggests that the new special counsel could investigate the DOJ and FBI’s decision not to prosecute Hillary Clinton in the summer of 2016.
.. On Wednesday night, Sessions gave an interview to Fox News’ Shannon Bream, in which he said he was indeed considering appointing a second special counsel.
.. “This is completely independent of what Bob Mueller is doing on the Russia inquiry,” he said, stressing that he was directing his comments to any reporters listening. “It’s completely separate. This is involving the FISA issues.” He went on to add that it could also include an investigation into Clinton’s emails and the bogus “Uranium One” Clinton scandal—both of which Sessions is supposed to be recused from.
.. But in the course of the show, Sekulow and his co-hosts made comments that seemed to confirm that the investigation they were calling for would, in fact, have an impact on the Mueller investigation. The proposed new special counsel could investigate “potential criminal conduct involved in, one, the Clinton investigation; two, what then led to the Russia investigation and the Trump campaign, because it was the same actors, and the FISA abuse,”
“Department of Justice has an opportunity to start cleaning house,” Jordan Sekulow said later in the show. “It involves the Clinton investigation, the Trump-Russia investigation.”