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.”
Its claims that the president can “order the termination of an investigation by the Justice Department or F.B.I. at any time and for any reason” is unprecedented and far exceeds even Harry Truman’s brazen and rejected attempt to take over the steel mills to blunt labor unrest in the 1950s.
.. We also responded in the negative — but it was not a simple, categorical no. The presidential subpoena is a valid legal tool, as Chief Justice Warren Burger made clear in United States v. Nixon, but a president may find case-specific reasons to resist it.
.. The authors of the letter think the question is answered by a lower-court ruling, United States vs. Espy, decided in 1997 during the presidency of Bill Clinton. The letter claims that to overcome a privilege claim, special counsel must show that evidence is obtainable from no other source than the president.
.. The letter’s position also draws anachronistically upon an early theory of Thomas Jefferson — that each branch determines its own constitutional meaning. In United States v. Burr (1807), Thomas Jefferson argued that while a court can issue a subpoena to the president, it is the president who decides how it is enforced.
To drive home his point, Jefferson submitted the subpoenaed material with portions blotted out. Somewhat surprisingly, the presiding judge, Chief Justice John Marshall, did not object.
.. John Marshall’s non-objection was anomalous; he is revered for the proposition that ultimately it is the Supreme Court that says “what the law is.”
.. Laurence Tribe, a law professor at Harvard, has written, “even if courts lack power to enforce a subpoena against a president, presidential defiance of a lawful court order might, in sufficiently serious circumstances, constitute an impeachable offense.”
.. About the only thing one can say for sure about the enforceability of a presidential subpoena is that, should the Trump and Mueller sides fail to agree on a setting for presidential interview, both sides have a basis to litigate the matter tenaciously.
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.
If Congress did its job, nobody would be talking about another special counsel.
When House Intelligence Committee Chairman Devin Nunes subpoenaed documents and testimony from the FBI and Justice Department, he was stonewalled for months. In a last-minute bid to circumvent the committee’s demands, FBI Director Christopher Wray and Deputy Attorney General Rod Rosenstein met with Speaker Paul Ryan. The two men ended up agreeing to comply with the subpoenas—but only because Mr. Ryan informed them they would be found in contempt if they did not.
This kind of stonewalling has fed the agitation on Capitol Hill for a second special counsel, who would look into everything from the FBI’s handling of the Clinton email investigation to the use of the Christopher Steele dossier to obtain warrants to listen in on members of the Trump campaign. The calls are mistaken. But the frustration is real
.. But missing here is any discussion of the powers Congress itself has, including but not limited to the subpoena and contempt powers that ultimately forced Mr. Wray and Mr. Rosenstein into compliance.
.. If it only has the backbone, Congress can get what it wants out of the federal bureaucracy. Several executive-branch officials—including Justice’s Bruce Ohr and FBI lovers Peter Strzok and Lisa Page —will soon testify before the House Intelligence Committee. Possibly some or all of them will invoke their Fifth Amendment right against self-incrimination.
If Congress insists on its prerogatives, however, that wouldn’t be the end of the story. Witnesses who plead the Fifth can still be compelled to testify. The price is that the compelled testimony, and evidence derived from that testimony, couldn’t be used against the witness in a prosecution.
A special counsel might not like this, given his emphasis on indictments and prosecutions. But Congress should, because its end goal is political accountability. Which would be up to the American people to impose after learning exactly what abuses have transpired.