Trump’s Lawyers, in Confidential Memo, Argue to Head Off a Historic Subpoena

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.”

The Trump team’s chilling message to Mueller

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.

 

Did the F.B.I. Save Trump’s Presidency?

But the significant question is whether any competent counterintelligence officer would not have seen, in this constellation of facts, serious reason to believe that the Trump campaign was profoundly vulnerable to Russian manipulation, even (or especially) if the candidate himself didn’t know about it. Just imagine if Manafort or Flynn hadn’t had their Russia ties exposed and now occupied positions of trust in the White House. The Kremlin would surely know how to leverage their secrets.

Trump is now taking his usual unbridled umbrage at comments by former National Intelligence Director James Clapper, which the president then misquoted, that he should be glad the F.B.I. was looking into potential Russian infiltration of his campaign. Of course he should be glad: The Bureau has now twice rescued him, first by reopening the investigation into Hillary Clinton’s emails on the eve of the election, and then by clearing out the Russian stooges in his employ.

That Trump won’t acknowledge this means he’s either profoundly foolish or, in ways we don’t yet understand, dangerously complicit. I still lean toward the former interpretation — just.

Comey Memos Reveal Trump’s Early Doubts About Flynn

Documents provide ex-FBI director’s account of meetings with new president and staff at a time when he faced uncertainty over whether he would be retained

The memos reveal that Mr. Trump expressed concerns about Mr. Flynn’s judgment just eight days after becoming president. Mr. Comey recounts a Jan. 2017 dinner with the president during which Mr. Trump said about Mr. Flynn: “The guy has serious judgment issues.” At issue was the fact that Mr. Flynn hadn’t told the president about a phone call from an unspecified foreign leader.

People familiar with the matter say that the call was from Russian President Vladimir Putin, who was the first foreign leader to call the White House to congratulate Mr. Trump after his inauguration. The call wasn’t brought to Mr. Trump’s attention until he was in the middle of a lunch with British Prime Minister Theresa May and was thanking her for being the first to call him.

 .. Mr. Flynn piped up and explained that it was Mr. Putin, not Ms. May, who the first to call and that Mr. Trump was expected to return Mr. Putin’s call soon, the people said. According to the memo, Mr. Trump was furious “because six days was not an appropriate period of time to return a call.”

What the FBI Raid on Michael Cohen Means for the Russia Investigation

Most important is the claim that he maintained a “covert relationship with Russia,” and that in August 2016 Cohen made a secret visit to Prague, the capital of the Czech Republic, where he reportedly met with senior Kremlin officials. According to the dossier, whose allegations are so far unproven, the Prague meeting was facilitated by Konstantin Kosachev, who heads the Russian Duma’s foreign-relations committee and who may have attended the meeting in person.

Most explosively, the dossier alleges that Cohen’s meeting in Prague in that late summer of 2016 included “secret discussions with Kremlin representatives and associated operators/hackers,” and that “the agenda comprised questions on how deniable cash payments were to be made to hackers who had worked in Europe under Kremlin direction against the CLINTON campaign and various contingencies for covering up these operations and Moscow’s secret liaison with the TRUMP team more generally.”

.. Sourced to a “Kremlin adviser,” the dossier report said that the meeting was originally planned for Moscow but was “shifted to what was considered an operationally ‘soft’ EU country when it was judged too compromising for him to travel to the Russian capital.” And it adds that Cohen’s wife “is of Russian descent and her father [is] a leading property developer in Moscow.” (Michael Cohen’s wife, Laura, is a Ukrainian of Russian descent, according to the dossier; his brother, Bryan, is also married to a Ukrainian; and, like Manafort, the Cohen family has business ties to Ukraine.)

.. So far, the report that Cohen met with Russians in Prague is unverified. Cohen has vigorously denied it, and he’s shown his passport, which lacks a Czech entry stamp, to reporters. However, according to a report by McClatchy, citing “two [unnamed] sources familiar with the matter,” Mueller “has evidence that Donald Trump’s personal lawyer and confidant, Michael Cohen, secretly made a late-summer trip to Prague during the 2016 presidential campaign.” The McClatchy report, by Peter Stone and Greg Gordon, two veteran investigative journalists, didn’t say whether Cohen met with Kosachev, but it did say that Mueller’s investigators unearthed the fact that Cohen traveled to Prague via Germany, meaning that his passport would not have needed a stamp from the Czech Republic.

.. Third, Cohen was involved in the still mostly unexplained “Ukraine peace plan” that reportedly ended up on the desk of Trump’s national security adviser, Michael Flynn, in February 2017 just before Flynn was forced to resign over his own contacts with Russia’s ambassador to the United States. The plan, organized outside regular diplomatic channels, was concocted by a Ukrainian politician, Andrii Artemenko, reportedly at the behest of top aides to President Putin. The plan, which would have resulted in eliminating or easing Western sanctions on Russia over its annexation of the Ukrainian province of Crimea, was cooked up in conjunction with Cohen and Sater. According to the New York Times report, Sater delivered the written plan to Cohen “in a sealed envelope,” and Cohen placed it in Flynn’s office.

.. Fourth, as The Wall Street Journal revealed in a stunning exposé, Cohen was the attorney who arranged a $1.6 million payoff to quiet a scandal involving an affair between Elliott Broidy, a top Republican Party fundraising official, and a Playboy Playmate. But Broidy has a part to play in the Russia scandal, too: Along with an operative named George Nader, who was picked up by federal agents at an airport and who’s now cooperating with Mueller’s office, Broidy was a principal in a scheme to boost US support for the United Arab Emirates over Qatar, in a tangled dispute among Arab nations of the Persian Gulf. Nader is an adviser to the UAE, and as the Times recently reported, Nader maintains business ties to Russia, including working on arms deals.

.. Meanwhile, the Times reported, Broidy “owns a private security company with hundreds of millions of dollars in contracts with the United Arab Emirates, and he extolled to Mr. Trump a paramilitary force that his company was developing for the country.” And it was Nader who arranged the secret meeting between Erik Prince, top UAE officials, and a Russian wheeler-dealer named Kirill Dmitriev, a meeting that Mueller is now investigating because it was apparently aimed at setting up some sort of back-channel links between Moscow and the incoming administration in Washington.

Trump’s Lawyer Raised Prospect of Pardons for Flynn and Manafort

A lawyer for President Trump broached the idea of Mr. Trump’s pardoning two of his former top advisers, Michael T. Flynn and Paul Manafort, with their lawyers last year, according to three people with knowledge of the discussions.

The discussions came as the special counsel was building cases against both men, and they raise questions about whether the lawyer, John Dowd, who resigned last week, was offering pardons to influence their decisions about whether to plead guilty and cooperate in the investigation.

.. The talks suggest that Mr. Trump’s lawyers were concerned about what Mr. Flynn and Mr. Manafort might reveal were they to cut a deal.

.. Mr. Mueller’s team could investigate the prospect that Mr. Dowd made pardon offers to thwart the inquiry, although legal experts are divided about whether such offers might constitute obstruction of justice.

.. The pardon discussion with Mr. Manafort’s attorney, Reginald J. Brown, came before his client was indicted in October on charges of money laundering and other financial crimes.

.. Mr. Brown is no longer his lawyer.

.. He denied on Wednesday that he discussed pardons with lawyers for the president’s former advisers.

“There were no discussions. Period,” Mr. Dowd said. “As far as I know, no discussions.”

.. During interviews with Mr. Mueller’s investigators in recent months, current and former administration officials have recounted conversations they had with the president about potential pardons for former aides under investigation by the special counsel ..

.. In one meeting with lawyers from the White House Counsel’s Office last year, Mr. Trump asked about the extent of his pardon power, according to a person briefed on the conversation. The lawyers explained that the president’s powers were broad, the person said. And in other meetings with senior advisers, the president raised the prospect of pardoning Mr. Flynn, according to two people present.

.. The remedy for such interference would more likely be found in elections or impeachment than in prosecuting the president

.. “The framers did not create the power to pardon as a way for the president to protect himself and his associates” from being prosecuted for their own criminal behavior, he said.

Under Mr. Buell’s interpretation, Mr. Dowd’s efforts could be used against the president in an obstruction case if prosecutors want to demonstrate that it was part of larger conspiracy to impede the special counsel investigation.

.. I can say this: When you look at what’s gone on with the F.B.I. and with the Justice Department, people are very, very angry.

‘You should do it’: Trump officials encouraged George Papadopoulos’s foreign outreach, documents show

As late as December 2016, as President-elect Trump was preparing to take office, Papadopoulos tried to serve as a conduit for the defense minister of Greece, transmitting what he said was a proposal for a strategic alliance from the Russian-allied Greek official that was reviewed by Bannon and Flynn, then in line to be national security adviser.

.. Papadopoulos is the only Trump associate known to have told prosecutors he had advance warning the Russians held emails that could be damaging to Trump’s Democratic opponent, Hillary Clinton. A London-based professor told Papadopoulos in April 2016 that the Russians had dirt on Clinton in the form of thousands of emails

.. The documents also indicate that amid Papadopoulos’s advocacy of closer ties to Russia, he retained access to top officials — even after Trump’s victory.

.. In July 2015, Papadopoulos contacted then-campaign manager Corey Lewandowski about his interest in joining Trump’s campaign,

.. In December 2015, Papadopoulos went to work for the campaign of neurosurgeon Ben Carson, who was then challenging Trump for the GOP nomination.

After several months, Papadopoulos reached out again to the Trump campaign to inform them he would be leaving the flagging Carson campaign.

“I wanted to let you know that I stopped working as Ben Carson’s principal foreign policy adviser. I’d be interested in getting on board with the Trump team. Is the team looking to expand?” Papadopoulos wrote to Glassner early in March 2016.

At the time, Trump was surging in the polls, and the real estate developer was under increasing pressure to name foreign policy advisers to his team.

.. Later that month, Trump himself named Papadopoulos among a list of five people advising his campaign on foreign policy during a meeting with The Washington Post editorial board. “Excellent guy,” the candidate said.

At the end of March, Papadopoulos attended a meeting of Trump’s newly named national security advisory group at the candidate’s not-yet-opened hotel in Washington. After introducing himself, the young adviser announced he could organize a meeting between Russian President Vladi­mir Putin and Trump, according to court documents.

In May, Papadopoulos forwarded to campaign officials a note he received from Timofeev informing him that Russian Foreign Ministry officials were open to a Trump visit. That idea was batted down by campaign chairman Paul Manafort, who emailed his associate Rick Gates: “We need to communicate that DT is not doing these trips.”

.. The emails show Papadopoulos was the first to alert the campaign to al-Sissi’s interest in meeting and that he then connected top campaign leadership to the Egyptian Embassy.