Over his nearly three years in office, lawyers representing President Trump have made numerous legal arguments that, taken as a whole, would give the president sweeping immunity—even if he were to commit murder.
An extensive review of correspondence, court documents, legal opinions and public statements from lawyers representing Mr. Trump shows the president’s attorneys have consistently pushed to put him beyond the reach of any other institution in federal, state or local government—immune to civil lawsuits, judicial orders, criminal investigations or congressional probes.
Those arguments have become even more aggressive as Mr. Trump faces numerous legal threats, including a possible impeachment in Congress, a New York state prosecutor who has subpoenaed his tax records as part of a criminal probe and a welter of civil lawsuits.
One lawyer for the president recently went so far as to suggest that Mr. Trump could shoot someone on Manhattan’s Fifth Avenue and not be investigated by local authorities, echoing a statement the president made during his 2016 campaign in which he said he wouldn’t lose any voters over such an action.
“This administration has articulated a view of presidential power in which the president is above the law,” said Erica Newland, who served in the Justice Department Office of Legal Counsel during both the Obama and Trump administrations.
Some positions that lawyers representing Mr. Trump, the White House or the Department of Justice have argued since January 2017 in court or in other legal documents:
- Mr. Trump is immune from criminal investigation while he remains in office, even if he were to shoot someone on the streets of Manhattan.
- Federal courts don’t have the authority to transmit grand jury material concerning presidential wrongdoing to Congress to consider impeachment.
- Close aides of the president are entitled to total immunity from testifying if subpoenaed by Congress.
- Administration officials don’t have to cooperate with an impeachment inquiry conducted by Congress even if subpoenaed.
- Many government ethics rules designed to prevent conflicts of interest, nepotism or self-dealing do not apply to Mr. Trump or other White House employees.
- Mr. Trump shouldn’t have to obey state or federal laws that could require the production of his tax returns, and he is immune from a subpoena from state prosecutors for those returns.
“If he can’t be held accountable via executive-branch law enforcement and he can’t be held accountable via congressional impeachment, then we really do have a king,” said Ms. Newland, now counsel at the bipartisan legal advocacy group Protect Democracy.
Lawyers representing the president either in his personal or institutional capacity have argued that
- law enforcement can’t investigate the president at all; that
- he can shut down investigations into himself or his associates; and that
- obstruction-of-justice laws don’t apply to the president.
At the same time, since Democrats took over Congress in January, Mr. Trump’s government and personal lawyers have fought numerous legal battles over congressional oversight—arguing that close aides don’t have to testify even if subpoenaed, that all congressional investigations must serve a “legislative purpose,” that cabinet secretaries can disobey subpoenas and that a congressional impeachment inquiry is invalid.
Further, they have argued that federal courts don’t have the authority to transmit any evidence of presidential wrongdoing obtained by a grand jury to Congress for possible consideration of impeachment. In some instances, Trump administration attorneys have contended that some executive decisions are unreviewable by the courts, or that courts have no right to issue orders stopping the president from taking official actions.
Some of the claims contradict each other: Mr. Trump’s personal attorneys have argued he can be held accountable only by Congress, while his White House lawyers fought efforts to hold him accountable in Congress.
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The White House, the Justice Department and an attorney representing Mr. Trump personally didn’t respond to multiple requests for comment.
To some extent, these positions reflect what all lawyers do: take aggressive, maximalist legal positions in the best interests of the client, and see if a court agrees. Lawyers for previous presidents—Democrats and Republicans—are no strangers to making similarly aggressive claims about powers, authority and immunities to defend the president personally or the long-term power and authority of the office.
But scholars who study the history of presidential power say what is different about the Trump administration is its unwillingness to acknowledge the legitimacy and interests of other institutions.
“Mr. Trump has taken the position that the [Constitution’s] Article II powers of the president give him absolute authority. What makes his case different is that he is not even recognizing the legitimacy of countervailing powers” such as Congress, said Mark Rozell, a dean at George Mason University who has studied presidential authority. “He is deeming them as politically motivated and not legitimate in their inquiries and therefore to be obstructed at every turn.”
The issue gets even more complicated in investigations like impeachment because overlapping legal teams are defending the president in both his capacity as an individual and his capacity as the president.
Government lawyers represent the presidency as an institution and are supposed to advance arguments to preserve the institutional powers of the president—but aren’t supposed to defend the president’s personal interests.
The Justice Department, the White House counsel and his personal legal team are all defending the president on a cornucopia of different lawsuits around the country.
John Yoo, a former Bush administration official known for his advocacy of expansive presidential power, said many of the most extreme legal positions taken by the Trump lawyers have come from his personal attorneys trying to defend him by invoking the powers of the presidency. He said that most of the positions the Justice Department, White House counsel and other government lawyers have taken are in line with previous practices.
“When it comes to where he’s making the arguments on behalf of the office of the presidency, in his official capacity, I think he’s gone just as far as other presidents have,” Mr. Yoo said. “In the areas where the president has been defending himself as an individual rather than the office, he has made arguments that have gone beyond what past presidents have set out.”
Mr. Yoo added: “I think that Trump has been under unprecedented assault—constitutionally, legally—from his critics too. I can see why his lawyers are bringing out these arguments which are usually reserved for times of real crisis.”
Mr. Trump isn’t the first to provoke a legal showdown over his powers and immunities. But rarely did the attorneys representing other presidents deny that other institutions also had legitimate interests.
Richard Nixon sparked a major legal battle over his refusal to turn over tapes of Oval Office conversations to prosecutors and Congress. But he also offered numerous compromises, such as turning over transcripts, because he and his attorneys recognized that Congress and prosecutors had legitimate interests in access to the materials as part of their inquiries.
During a yearslong independent counsel investigation and later impeachment, President Bill Clinton also fought numerous legal battles over his privileges and immunities, but frequently argued before courts that they needed to balance the interests of the presidency against the needs of Congress or law enforcement. Mr. Clinton, for instance, agreed to testify before a grand jury in exchange for independent prosecutor Ken Starr dropping a subpoena.
President George W. Bush fought back against a Democratic-led congressional investigation to keep his top aides from testifying about the firing of federal prosecutors for what critics said were political reasons, but offered a compromise by allowing voluntary interviews and turning over documents to Congress.
Few of those legal positions have ever been blessed by courts.
Last week, Mr. Trump’s personal attorney William Consovoy argued before a New York federal appeals court in the tax case that Mr. Trump couldn’t be investigated for any crime while in office. The judge asked if that included shooting someone on Fifth Avenue. “Nothing could be done?” he asked.
“That’s correct,” Mr. Consovoy said. That case is pending.
In another instance earlier this month, Justice Department lawyers argued that a court couldn’t give Congress evidence that was gathered by special counsel Robert Mueller if it was obtained using a grand jury—going so far as to say that a federal judge was wrong in 1974 to give Congress materials from the grand jury investigating the Watergate break-in.
“Wow, OK,” U.S. District Judge Beryl A. Howell said in response to that argument. “The department is taking extraordinary positions in this case.”
She ruled against the Justice Department last week, writing that her decision was motivated in part by the White House’s refusal to cooperate with congressional investigators.
The White House announced Monday it would appeal.
Former head of the Office of Legal Counsel Walter Dellinger tells Lawrence that there is already enough evidence to find that “the president obstructed justice in the worst of high crimes and misdemeanors.” Mimi Rocah also joins.
Three (provisional) reasons not to put the president on trial.
You could argue that the month of January has very modestly raised the odds that Donald Trump will not finish his term as president.
First, the government shutdown has demonstrated that Trump’s own incompetence suffices to cost him support in the polls and in the Senate — an indication that a larger crumbling of his political firewall might be possible.
Second, the indictment of Roger Stone, based on his lies to Congress about outreach to WikiLeaks, keeps open the possibility of future revelations of conspiracy implicating Trump himself.
Finally, there has been a burst of media interest in impeachment — an Atlantic cover story by Yoni Appelbaum prodding Democrats to take the plunge, and a more cautious essay by my colleague David Leonhardt putting the option on the table.
I’m open to these arguments; indeed, I have to be, since I’m on the record urging this president’s removal from office using the unusual remedy of the 25th Amendment. But there are several difficulties with the current briefs for impeachment, which suffice for now to keep a Pence presidency out of reach.
The first is the gulf between the democracy-subverting powers that the briefs ascribe to Trump and the actual extent of his influence. In Appelbaum’s essay, the president is charged with nothing less than having “trampled” on “the liberties guaranteed by the Constitution.” But many of his examples feature Trump failing to actually trample anything. He “did his best” to enact a Muslim travel ban (the actual ban was limited and upheld by the Supreme Court), he has “called for” the firing of political enemies (with little discernible result), he has made “efforts” to impede the Mueller investigation (which continues apace), and so on down the list of outrages that exist primarily on his Twitter feed.
Much of the case for “trampling,” then, is a case against Trump’s rhetoric. And one can acknowledge that rhetoric’s evils while doubting that the ranting of a president so hemmed in, unpopular and weak is meaningfully threatening the Constitution.
..Especially because of the second problem with the case for impeachment, which might be summed up in a line from a poem that Trump often quoted in 2016: You knew damn well I was a snake before you took me in.Meaning, in this case, that little about his rhetorical excess, his penchant for lies and insults or the seaminess of his courtiers was hidden from voters on the campaign trail in 2016, in an election that by the Constitution’s standards Trump legitimately won.
The electorate’s foreknowledge of a politician’s sleaziness doesn’t preclude impeachment. But it means that there is, at least, a quantum of sleaze that the president’s supporters voted to accept. And the closer we get to a new election — including another primary campaign — the stronger the case for asking voters to retract that endorsement, instead of pre-empting their judgment from on high... Appelbaum, for instance, analogizes Trump’s race-baiting to Andrew Johnson’s efforts to impede Reconstruction in the late-1860s South. But when he was impeached, Johnson was literally using his veto to abet the possible restoration of white supremacy. Whereas Trump is conspicuously losing a fight over some modest border fencing, and his last race-inflected policy move was … a criminal justice reform supported by many African-Americans. The president may be a bigot, but the policy stakes do not remotely resemble 1868.
Then there are the geopolitical risks of Trump’s alleged Russian loyalties. After the Stone arrest, Appelbaum’s Atlantic colleague David Frum deemed these too severe to wait even for Robert Mueller’s verdict: “But now — now! — the country is in danger.”
But in the absence of Mueller-stamped evidence, what we have to prove that peril is Trump’s actual foreign policy, which is erratic but frequently quite unfriendly to Moscow — with the administration’s effort to subvert the Russian-aligned Maduro regime in Venezuela just this week’s example.
Which makes it entirely reasonable to wait to see whether Mueller vindicates the various uncorroborated scoops about a conspiracy hatched in Prague or the Ecuadorean Embassy, rather than trying to impeach Trump for, say, his private griping about NATO.
At the end of my invoke-the-25th-Amendment column I wrote, “There will be time to return again to world-weariness and cynicism as this agony drags on.” That was month four of this presidency; as we approach month 25 I suppose I have become that world-weary cynic.