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.
President Trump’s attorney William Consovoy argued in federal court that President Trump enjoys absolute immunity from criminal investigations while in office, even if he shot someone.
Rudy Giuliani started Tuesday in the manner Americans have come to expect of the president’s lawyer: He attacked former FBI director James Comey by tweeting a cartoon image of Bashful from Disney’s “Snow White.”
Giuliani deleted the tweet, and anyway, it’s not clear why he chose Bashful.
Giuliani, asked by the New York Daily News to explain himself, said, “I don’t think I said nobody signed it.” Completing the reversal, he said “of course” Trump signed it: “How could you send it but nobody signed it?”
.. The “fool” has been a dramatic fixture at least since Shakespeare scribbled, and Giuliani is the fool for our time. Occasionally he speaks accidental truths, but mostly he plays the clown.
.. “Twitter allowed someone to invade my text with a disgusting anti-President message,” an alarmed Giuliani tweeted a few weeks ago, calling Twitter “card-carrying anti-Trumpers.” In fact, Giuliani had accidentally sabotaged his own tweet with a punctuation error — “G-20.In” — that automatically created a hyperlink to an Indian Web address. A clever observer quickly bought the domain and created a page that said “Donald Trump is a traitor.” Giuliani’s errant accusation was all the funnier because he’s also Trump’s “cybersecurity adviser.”
.. The former New York mayor, 74, has long been a loose cannon, asserting that there had not been any “successful Islamic terrorist attacks” during the George W. Bush administration, saying Trump’s travel ban was a legal way to do a “Muslim ban,” and predicting a “pretty big surprise” right before Comey reopened the Hillary Clinton email investigation. Alternately ill-informed and indiscreet, he’s just the guy you’d want as your lawyer.
.. Giuliani began as Trump’s lawyer in the spring by comparing FBI agents to “stormtroopers” and later claiming a law-enforcement informant was a “spy.”
.. He said he would charge special counsel Robert Mueller’s office “with a lance” to defend Ivanka Trump, but Jared Kushner is “disposable.”
.. He said Trump couldn’t be indicted as president even if he “shot” Comey.
.. He undermined months of Trump’s “no collusion” claims by proclaiming instead that “collusion is not a crime.”
He defended Trump on NBC’s “Meet the Press” by saying “truth isn’t truth.”
He admitted publicly that the June 2016 Trump Tower meeting was held “for the purpose of getting information about Clinton,” upending the official line that it was about adoption.
He suggested guilt when he told the Daily Beast “this was not a big crime” because “nobody got killed, nobody got robbed.”
And, days ago, he raised the possibility that associate Roger Stone gave Trump advance notice that WikiLeaks would release emails about Clinton stolen by Russia, saying “if” Stone had, “it’s not a crime.”
Clearly, some Giuliani dopiness is an effort to divulge damaging information gently. But he often makes matters worse.
.. Giuliani announced that Trump reimbursed Cohen for hush money to a porn actress. But he seemed baffled when told Cohen had claimed it was his own money: “He did?” Retreating, Giuliani said Trump wasn’t told about the payments, “but even if he was told, he wouldn’t have remembered it.” Further backpedaling, Giuliani said, “I’m not an expert on the facts” and issued a written statement “to clarify the views I expressed over the past few days.”
A similar mop-up came after Giuliani volunteered on TV that there had been a second meeting between Trump associates and Russians. Hours later, he said the just-referenced meeting “never happened.”
On Sunday, Giuliani was back to truth-isn’t-truth, telling ABC’s George Stephanopoulos that “unless you’re God . . . you will never know what the truth is” from Cohen. And Giuliani told Fox News’s Chris Wallace that Mueller would interview Trump “over my dead body — but you know, I could be dead.”
Perish the thought! We need Giuliani’s entertainment. But when he dies, there should be a memorable scene when he goes before the One Who Knows Truth.
“I didn’t lie,” Giuliani will say, “but even if I did, it wasn’t a crime to be Dopey.”
Comments:.. Trump is the anti-King Midas.
.. I’m sorry, but this column is mistaken. Giuliani is playing out his assigned role precisely as intended. Self-contradictions, deliberate falsehoods, apparent “misstatements,” bizarre tweets — all external hallmarks of Rudy’s boss, and Rudy’s a talented understudy. The purpose behind all this playacting is to distract and confuse, and it works. Trump continues to operate on the principle that the longer he can keep people shocked, off-balance, outraged, distracted, and confused, the longer he can rake in ill-gotten gains from his real aim: fleecing the American public. Giuliani has been recruited to assist in the Dept. of Misdirection.
The only fool thing Giuliani has done is to place the slightest reliance on Trump’s promise of whatever payback The Gilded Don has dangled in exchange for Rudy’s excellent diversionary stunts. A substantial group of construction subcontractors have learned, to their lasting pain and sorrow, what Trump’s promises are worth... I agree. Fortunately, Giuliani has no power or authority so people just ignore his inane pronouncements. In the words of Jimmy Breslin, “Rudy Guiliani is a small man in search of a balcony.”.. I think you’re giving them both more credit than they deserve. IMHO Trump is just a bully and Giuliani really is just a fool. But hey, there’s every chance you’re right, I’m just not sure they are smart enough to be so devious... Trump, Giuliani, and Gingrich: The Three Wives Men.. Oh god another moron who thinks he is a stable genius. Surely Rudy’s third divorce is having an affect on him. And getting kicked out of his law firm for disgracing them with his idiocy, and having another exwife asking for more money, just has Rudy rattled. Please somebody remove this blight on the Constitution from our eyes and ears... I find it amazing that anyone would even have this man appear in front of any camera. If one lived in NYC when he was Mayor (as I did) you would know the truth about him.He was a Mayor whose interest was to clean up the parks by moving all the homeless out of them with nowhere to go. Put them in the streets with no plan.Did nothing for NYC education, nothing for housing, nothing for women’s or Gay rights and on and on.The final straw was this America’s Mayor standing in front of Grace Mansion and telling the world he was divorcing his then wife (Donna Hanover) to marry his mistress. Never telling her in person.What kind of man is this? He is exactly the clown you see today licking the boots of a President who like Rudy is a man without scruples and who lies on TV then is brought back to reality with proof that he spouts these lies and thinks he will get away with them. Todays world has everything recorded. Mr Giuliani please go back to your senior home and take your meds... Could it be that Rudy is really a secret double agent who actually works for Mueller? Every time he opens his mouth, Rudy digs the hole deeper for Trump... Very nicely done. The most puzzling thing about Giuliani is that he doesn’t have the self-awareness to realize that he looks foolish and he apparently doesn’t have anyone close to him who he trusts to tell him that he looks foolish either. He has chosen a very difficult role: mouthpiece for an habitually lying, narcissistic degenerate. Very few people could take that role and emerge with any dignity. In fact, most people with dignity would not take that role. Guliani will not be remembered as the Mayor of New York City during 9/11 nor as the U.S. Attorney who once tried to clean up Wall Street. He will be remembered as Trump’s tool, and as this piece says, as a fool.
.. Mr. Rudolph Guiliani is second only to the TRumpster himself in making the TRumpster look guilty as sin.