Comments represent hardening of White House stance on sit-down in Russia probe
WASHINGTON— Rudy Giuliani said Sunday that President Donald Trump would only submit to an interview with Robert Mueller if the special counsel could show a “factual basis” for the Russia investigation, which he characterized as corrupt.
The new statement from Mr. Trump’s lawyer, repeated on three Sunday news shows and in an interview with the New York Times, suggests prospects are receding for a sit-down between the president and Mr. Mueller.
.. “We would not recommend an interview for the president unless they can satisfy us that there is some basis for this investigation,” Mr. Giuliani said on NBC, a hardening of the White House’s stance after months of negotiations on the terms under which the president would agree to testify.
The special counsel investigation was established by Deputy Attorney General Rod Rosenstein to handle the FBI’s Russia investigation, which began in 2016, after Mr. Trump fired FBI Director James Comey in May 2017.
The enabling documents for the probe authorize Mr. Mueller to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” as well as “any matters that arose or may arise directly from the investigation.”
.. Lawyers for Mr. Trump had been eyeing early July as a possible time for an interview with the special counsel, likely at Camp David or the White House and lasting for about 2½ hours.
.. Earlier this year, Mr. Trump said he would be willing to testify under oath. But Mr. Giuliani later struck a more combative stance, saying he should only agree to such a meeting if federal prosecutors made clear the role played by a suspected informant said to have approached Trump campaign aides.
.. Mr. Giuliani said the investigation wouldn’t find any “evidence of wrongdoing” by the president.
“I have a pretty good idea because I have seen all the documents that they have,” Mr. Giuliani said on CNN, adding the investigation had produced 1.4 million documents.
.. Mr. Giuliani cited an inspector general report that found a former Federal Bureau of Investigation agent on Mr. Mueller’s team, Peter Strzok, had sent text messages critical of Mr. Trump. Mr. Strzok was reassigned from his post last summer after Mr. Mueller learned about the messages. “It cast a taint over the entire investigation,” Mr. Giuliani said on ABC. He added: “This is the most corrupt investigation I have ever seen.”
.. Mr. Trump would be “like a lamb going to the slaughter” if he were to testify, Mr. Giuliani added.
.. Mr. Giuliani also said he had “zero” concerns about Mr. Trump’s longtime personal lawyer Michael Cohen speaking with federal prosecutors as part of a separate probe into Mr. Cohen’s business dealings. Mr. Cohen has denied any wrongdoing. “As long as he tells the truth,” said Mr. Giuliani, “We’re home free.”
The letter briefly shifts in tone to an attack on law enforcement institutions and the legitimacy of the investigation. The president and his allies routinely use such language in the public relations arena. But his lawyers’ use of it in a private missive to Mr. Mueller is striking: a reminder to the special counsel that he will face more than legal pushback if he subpoenas the president or accuses him of wrongdoing.
.. MUTUAL UNDERSTANDING
This is why defense lawyers have been so confident in saying that Mr. Mueller is not investigating Mr. Trump’s personal finances or his family’s real estate dealings.
.. LIMITS OF EXECUTIVE PRIVILEGE
The president’s lawyers are arguing that because they have turned over so many documents and made other witnesses available for depositions, Mr. Mueller has already obtained the same information he would get from an interview with Mr. Trump. But if a subpoena fight does arise, Mr. Mueller will almost certainly argue that only by questioning Mr. Trump directly about what he was thinking can investigators determine his intent.
.. FULL COOPERATION MODE
The White House has been saying for months that it is in “full cooperation mode” with the special counsel. This is the payoff for that strategy. The president’s lawyers are signaling here that, if subpoenaed, Mr. Trump would argue that the many documents the White House has turned over and the hours of interviews with staff members have made his testimony unnecessary.
.. AN OUTDATED UNDERSTANDING OF THE LAW
Mr. Trump’s lawyers are making a legalistic argument that he could not have violated an obstruction statute because F.B.I. investigations are not considered to be covered by it. But a different obstruction statute is relevant here, legal experts say. Enacted in 2002, it criminalizes the corrupt impeding of proceedings even if they have not yet started — like the potential grand jury investigation an F.B.I. case can prompt. The president’s lawyers do not mention this statute, whose existence appears to render several of their arguments beside the point.
.. FLYNN’S INVESTIGATION
We learn here for the first time that Mr. Flynn told top White House officials that the F.B.I. investigation into him was nearly complete. Mr. Trump’s lawyers go on to say this is important because the president could not have tried to obstruct an investigation he believed was over.
.. DON’T THANK ME
Mr. Trump’s lawyers say he should get credit for his handling of Mr. Flynn’s case because he ultimately fired him.
.. MORE SHOTS AT COMEY
Mr. Comey’s contemporaneous memos paint an unflattering portrait of Mr. Trump and are key evidence in the case. Here, Mr. Trump’s lawyers assail their credibility, saying perhaps Mr. Comey misunderstood the president’s comments.
.. A HIGHER LOYALTY
Mr. Comey relishes his reputation as a fiercely independent lawman. But in this instance, he might have benefited from sharing his concerns about Mr. Trump with someone at the Justice Department.
.. WHAT ABOUT A BAD REASON?
For the most part, executive branch officials serve at the pleasure of the president, who can fire them at his discretion. But the Supreme Court has ruled that Congress can create limits, upholding statutes that forbid the firing of certain officials without good cause. The novel legal question, which this statement evades, is whether statutes outlawing obstruction of justice implicitly constitute such a limit on when a president can fire an F.B.I. director. If so, it would be unlawful to fire an F.B.I. director for a corrupt reason — even though it would still be legal to fire him or her for a good reason or even for no particular reason..
.. EVERYTHING IS UNPRECEDENTED
No president has ever faced criminal charges about anything. Under Richard Nixon and Bill Clinton, the Justice Department opined that presidents are immune from prosecution while in office, and neither was prosecuted afterward because Gerald Ford pardoned Nixon and Mr. Clinton struck a deal with prosecutors on his last day in office. This is one of many ways that the Trump era is potentially taking the country into uncharted waters.
.. A BROAD VIEW OF POWER
This is the most sweeping legal claim in the letter: Even if Mr. Trump did order an investigation shut down and fire the F.B.I. director as part of a cover-up of wrongdoing, his lawyers say he still did not violate the law because he was exercising powers the Constitution has granted exclusively to him. Under this view, it would be unconstitutional to apply obstruction-of-justice statutes enacted by Congress to limit how a president chooses to use his power to supervise the executive branch.
.. ATTACKING COMEY’S CREDIBILITY
The president’s lawyers devote much of the letter to attacking Mr. Comey as a potential witness, suggesting here that his memo documenting his conversation with Mr. Trump about Mr. Flynn may not exist. Three months after this letter was written, the memo was made public. They also appear to suggest that Mr. Comey may have written the memo after Mr. Trump fired him, rather than documenting the conversation immediately after it happened, as Mr. Comey has said he did; there is no evidence no support that insinuation.
THE LESTER HOLT INTERVIEW
Mr. Trump’s lawyers are arguing that this excerpt from the interview has been misunderstood because of his meandering, stream-of-consciousness speaking style, and that the president got diverted but eventually came back to what he meant: not that he fired Mr. Comey because of the Russia investigation, but that he did so despite knowing that it would probably prolong the investigation.
.. PRESSURE’S OFF
Mr. Trump’s lawyers do not concede that he said this — though the Times’ account was based on an official document summarizing the meeting — but they say it does not matter even if he did. Most interesting is the reference to a confidential memo, suggesting a more expansive response could not be made in this letter without compromising classified information.
.. TRUMP’S CENTRAL ROLE IN A MISLEADING STATEMENT
This is the first time that representatives of Mr. Trump concede that he dictated a “short but accurate” statement issued by his son to The New York Times about a meeting in June 2016 the younger Mr. Trump had with a Russian lawyer who an intermediary claimed had “dirt” on Hillary Clinton. Mr. Trump’s advisers have tried to muddy this point, suggesting several people were involved, so the clarity of the sentence is striking. The response about the statement from Mr. Trump’s lawyers also quickly shifts to Mr. Trump’s son, saying he soon after made a “full public disclosure” about how the meeting was arranged.
.. LYING TO THE MEDIA IS NOT A CRIME
It is not a crime for a politician to lie to The Times and, by extension, to the public. But there are at least two reasons that Mr. Trump’s role in drafting a misleading statement may be of interest. First, it could be evidence of his mind-set when he undertook other actions that may have impeded the investigation. Secondly, a Watergate-era precedent exists for Congress to consider lies to the public to be obstruction of justice in the looser context of impeachment proceedings. An article of impeachment that lawmakers approved against Nixon before he resigned included “making or causing to be made false or misleading public statements for the purpose of deceiving the people of the United States into believing” there had been no misconduct.
.. HAPPY TO HELP
The president’s lawyers say they will answer questions on the president’s behalf, a strategy that allows Mr. Trump the ability to say he has offered answers to every question — without the risk of actually having to sit for an interview. While prosecutors often take information (known as a proffer) from defense lawyers, most experienced investigators would say there is no substitute for having someone in the witness chair.
.. OUTDATED THEORIES
This footnote cites theories already debunked by the time this letter was sent. For example, the footnote cites a claim made on Jan. 23 by Senator Ron Johnson, Republican of Wisconsin, that the F.B.I. had a “secret society” devoted to bringing Mr. Trump down, as an excerpt from a F.B.I. text message suggested. But by Jan. 25 — four days before Mr. Trump’s legal team sent the letter — it had become clear that phrase was a joke, and Mr. Johnson walked back his alarmist assertion. Similarly, the letter claims that the F.B.I. opened the investigation based on a politically funded dossier of alleged Trump-Russia ties. But The Times had reported in December that the F.B.I. instead opened the investigation based on information from an Australian diplomat.
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.”
just calling out deceit is insufficient. It is essential as well to understand why Trump tells particular lies at particular moments and to be hardheaded in judging how effective they are.
.. Republicans on the ballot this fall should be asked if they see Pelosi as an “MS-13 lover,” and if not, whether they will denounce Trump for saying such a thing. I am not holding my breath.
.. Yet sometimes Trump engages in a perverse form of transparency. He signaled clearly that the whole point of his screed — during which he also re-upped his claim that Mexico would pay for his border wall — was about the midterm elections. Immigration, he said, is “a good issue for us, not for them.”
.. Why immigration? It’s not the central concern of most voters. A Gallup survey in May found that 10 percent of Americans listed it as the most important problem facing the country. And Trump’s wall is not popular — in a recent CBS News poll, 59 percent of Americans were against building it.
.. But currently, Trump and the Republicans aren’t focused on the majority of Americans. They are petrified that their own loyalists do not seem very motivated about voting in November.
.. just 26 percent of Americans strongly approved of Trump’s job performance, compared with 41 percent who strongly disapproved.
.. Trump and his party feel they need to screech loudly to get their side back into the game, and attacking immigration (going back to Mexican “rapists”) is the signature Trump talking point.
.. Republican House candidates are following Trump’s lead, according to a USA Today study published Tuesday, “blanketing the airwaves with TV ads embracing a hard line on immigration.” By contrast, health care was the topic most invoked in Democratic spots. The GOP’s emphasis may shift some after the primaries, but Republicans seem to know that wedge issues are more useful to them than their record.
.. Political polarization has many sources, but the prime cause of it now is the president himself. Polarization defines Trump’s survival strategy, and it means that demagoguery —
toward immigrants,
toward crime,
toward special counsel Robert S. Mueller III’s probe,
toward dissenting NFL players,
toward anyone who takes him on
— is what his presidency is all about.
.. What thus needs exposing is not simply Trump’s indifference to the truth but also the fact that he depends upon the kinds of lies that will tear our country to pieces.
Mr. Trump’s lawyers are arguing that this excerpt from the interview has been misunderstood because of his meandering, stream-of-consciousness speaking style, and that the president got diverted but eventually came back to what he meant: not that he fired Mr. Comey because of the Russia investigation, but that he did so despite knowing that it would probably prolong the investigation.