I can smell Donald Trump’s fear from here. His panic. His anxiety.
.. The only people who know what has been discovered in the Russian election meddling probe are Special Counsel Robert Mueller and his team, and they aren’t talking.
But President Trump no doubt knows far more about it than the rest of us, and what he knows — or what he fears — appears to be a consuming preoccupation. He tweets about the investigation constantly.
.. “They have come to believe that, if the Democrats win control of the House in November, the chamber will vote on whether to begin the impeachment process no matter the outcome of Mr. Mueller’s investigation. So they want to sway Americans — and by extension, lawmakers.”
.. The Times quoted Rudy Giuliani, one of the president’s lawyers, as saying, “Nobody is going to consider impeachment if public opinion has concluded this is an unfair investigation, and that’s why public opinion is so important.”
.. Politico reported on this strategy in May, writing: “President Donald Trump and his lawyers have made a strategic calculation that their fight against Special Counsel Robert Mueller is more political than it is legal. They’re banking that the lead Russia investigator will follow longstanding Justice Department practice that a sitting president can’t be indicted, and that the only real threat to Trump’s survival is impeachment.”
.. “So long as that theory holds, Trump’s plan is to forcefully challenge Mueller in the arena he knows best — not the courtroom but the media, with a public campaign aimed at the special counsel’s credibility, especially among Republican voters and G.O.P. members of Congress.”
.. In May, CNN’s Dana Bash interviewed Giuliani, and she posited that the “Spygate” saga was “an intentional strategy to undermine the investigation, knowing that they, the investigators, the special counsel, it’s their policy not to talk. But you are very free to and are very aggressive about doing so.”
Giuliani responded in part:
“Of course, we have to do it in defending the president. We are defending — to a large extent, remember, Dana, we are defending here, it is for public opinion, because eventually the decision here is going to be impeach, not impeach. Members of Congress, Democrat and Republican, are going to be informed a lot by their constituents. So, our jury is the American — as it should be — is the American people.”
.. One has to ask: Why exactly is impeachment front of mind for these people? If they were as innocent as they publicly proclaim, they would know that impeachment would be out of the question as a matter of fact and law. But that is apparently not the case.
.. I believe that Trump is conducting himself as only a guilty man would, one who has a very real and well-founded fear that he is in imminent jeopardy.
.. In May, Trump added Emmet T. Flood, a lawyer who represented Bill Clinton during his impeachment, to his legal team.
.. Impeachment is always on Trump’s mind, and so he relentlessly pursues his strategy of creating a climate of incredulity to ward it off.
.. Republicans, who now give Mueller a 17 percent approval rating, down from 29 percent in March.
.. Trump contends that there’s no there there. If not, why is he acting like there is?
Gohmert stated in a House Judiciary Hearing on May 15, 2013, that he believed the FBI did not act with due diligence concerning alleged bomber Tamerlan Tsarnaev. His contention was that the FBI was more interested in Christian groups such as those led by Billy and Franklin Graham than in groups that might be considered less politically correct to target. Attorney General Eric Holder responded to his claims: “The only observation I was going to make is that you state as a matter of fact what the FBI did and did not do. Unless somebody has done something inappropriate, you don’t have access to the FBI files … I know what the FBI did. You cannot know what I know. That’s all”. Gohmert objected to this on the grounds that Holder had “challenge[d]” his character and made several unsuccessful attempts to inject his viewpoint as a point of personal privilege.[14]
.. On January 4, 2015, Gohmert announced he would formally challenge Speaker John Boehner for the Speaker of the House position in the 2015 election. He announced the move on Fox & Friends Weekend. He lost to Boehner two days later, on January 6.[1][17]
.. In July 2015, Gohmert delivered a speech to the U.S. Congress in which he called upon the Democratic Party to disband due to its historical support of slavery and racism.[18][19]
.. Gohmert expressed fear that he might become the target of gun violence similar to that experienced by former Congresswoman Gabrielle Giffords and refused to hold public town hall meetings.[20]
.. He was one of a number of Republicans who voted against the Budget Control Act of 2011 on grounds it did not do enough to deal with the government’s growing debt.[23]
.. Gohmert does not believe in manmade climate change, and has asserted that data supporting the theory is fraudulent.[28]
.. On August 12, 2010, Gohmert appeared on Anderson Cooper 360° to defend comments he had recently made on the floor of the House regarding “terror babies”. In a speech about national security made on the House floor in June 2010,[42] Gohmert stated that a retired FBI agent had told him that one of the things the FBI had been looking at were terrorist cells overseas sending young women to become pregnant so they would deliver the baby in the United States, and then take the baby with them back to be raised as a terrorist. When adult, this operative—a U.S. citizen by birth—could be easily infiltrated in the U.S. to carry out terrorist actions.[43]
.. In the interview, Gohmert asserted that pregnant women from the Middle East are traveling to the US on tourist visas, planning to deliver the child there.[45]
.. Representative Gohmert was one of three Republicans who called for the resignation of Robert Mueller, the prosecutor investigating Russian interference in the 2016 presidential election, on the grounds that he can not conduct his investigation fairly because of his conduct as a prosecutor and as acting director of the FBI.[58][59]
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.”
Although the former mayor says that he is acting as Donald Trump’s outside legal counsel, it’s increasingly clear that his main role is that of attack dog. His principal assignment: to bloody Mueller, and, if possible, disable him.
.. During his sitdown with Ingraham, Giuliani extended this argument, arguing that for “the same reason they can’t indict him, they can’t issue a subpoena to him.”
These statements raise an obvious question: If Mueller really has nothing on Trump, and if, in any case, he is barred from bringing an indictment or issuing a Presidential subpoena, why are the President and his attorneys so concerned about the investigation?
.. As the Republican congressman Trey Gowdy remarked to Trump’s former lead attorney, John Dowd, after he called on Mueller to wrap it up, “If you have an innocent client … act like it.”
the special counsel’s team has proceeded methodically for the past twelve months on at least five distinct but connected fronts:
Russian trolling and voter-targeting on social-media platforms;
the hacking and release of Democratic e-mails;
direct contacts between members of the Trump campaign and individuals connected to the Russian government;
Trump’s business dealings with people and entities connected to Russia; and
possible obstruction of justice.
.. Strictly speaking, that is a separate probe. But nobody on Trump’s team doubts that if and when Cohen decides to coöperate with the prosecutors, Mueller’s investigators will be all ears.
.. as early as last fall, Mueller’s team demanded information from some of the companies that hired the Trump fixer as a consultant after the election. This suggests that the investigation is running many months ahead of the media, and also, perhaps, ahead of the White House’s knowledge of its activities.
.. we know, courtesy of a leak to the Times by Trump’s lawyers, is that Mueller wants to pose at least forty-nine questions to the President himself. Despite Trump’s constant refrain that there was no collusion with Russia, many of these questions also relate directly to what happened before the 2016 election.
.. “During the campaign, what did you know about Russian hacking, use of social media, or other acts aimed at the campaign?” and
“What knowledge did you have of any outreach by your campaign, including by Paul Manafort, to Russia about potential assistance to the campaign?”
.. if Mueller found evidence of a serious crime involving the President, and he believed it should be prosecuted in an ordinary court of law, he could go to Rosenstein, who in this case would be the acting Attorney General—and the ultimate decision would fall on Rosenstein’s shoulders.
.. Most people in Washington don’t expect Mueller to bring criminal charges against Trump. If he doesn’t, and Trump doesn’t fire him before he completes his investigation, the key issue—whether or not to impeach Trump—may well be left to Congress. And since Congress operates in the court of public opinion, this would ultimately be a political decision.
That, of course, is another reason that Trump brought in Giuliani—to stick up for him and his family in public, even if that involves defending the indefensible
.. we can rest assured that they won’t be put off by Giuliani’s bluster.