MSNBC Chief Legal Correspondent, Ari Melber, breaks down how the most devastating claim made by Michael Cohen during his public testimony before the House Oversight Committee, is relevant to the Mueller probe. Melber walks through how Michael Cohen’s allegation that Trump was aware of the Wikileaks email dump before it happened, could potentially contradict Trump’s own written answers to Special Counsel Mueller.
Indeed,the acts of obstruction alleged against Presidents Nixon and Clinton in their respective impeachments were all such “bad acts” involving the impairment of evidence. Enforcing these laws against the President in no way infringes on the President’s plenary power over law enforcement because exercising this discretion — such as his complete authority to start or stop a law enforcement proceeding — does not involve commission of any of these inherently wrongful, subversive acts.
The President, as far as I know,is not being accused of engaging in any wrongful act of evidence impairment. Instead, Mueller is proposing an unprecedented expansion of obstruction laws so as to reach facially-lawful actions taken by the President in exercising the discretion vested in him by the Constitution. It appears Mueller is relying on 18 U.S.C. §1512, which generally prohibits acts undermining the integrity of evidence or preventing its production. Section 1512 is relevant here because, unlike other obstruction statutes, it does not require that a proceeding be actually “pending” at the time of an obstruction, but only that a defendant have in mind an anticipated proceeding. Because there were seemingly no relevant proceedings pending when the President allegedly engaged in the alleged obstruction, I believe that Mueller’s team is considering the “residual clause” in Section 1512 — subsection (c)(2) —as the potential basis for an obstruction case. Subsection (c) reads: (c) Whoever corruptly– (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so [is guilty of the crime of obstruction]. [emphasis added].
As I understand the theory, Mueller proposes to give clause (c)(2), which previously has been exclusively confined to acts of evidence impairment, a new unbounded interpretation. First, by reading clause (c)(2)in isolation, and glossing over key terms, he construes the clause as a free- standing, all-encompassing provision prohibiting any act influencing a proceeding if done with an improper motive. Second, in a further unprecedented step, Mueller would apply this sweeping prohibition to facially-lawful acts taken by public officials exercising of their discretionary powers if those acts influence a proceeding. Thus, under this theory, simply by exercising his Constitutional discretion in a facially-lawful way — for example, by removing or appointing an official; using his prosecutorial discretion to give direction on a case; or using his pardoning power ~ a President can be accused of committing a crime based solely on his subjective state of mind. As a result, any discretionary act by a President that influences a proceeding can become the subject of a criminal grand jury investigation, probing whether the President acted with an improper motive.
If embraced by the Department, this theory would have potentially disastrous implications, not just for the Presidency, but for the Executive branch as a whole and for the Department in particular. While Mueller’s focus is the President’s discretionary actions, his theory would apply to all exercises of prosecutorial discretion by the President’s subordinates, from the Attorney General down to the most junior line prosecutor. Simply by giving direction on a case, or class of
.. cases, an official opens himself to the charge that he has acted with an “improper” motive and thus becomes subject to a criminal investigation. Moreover, the challenge to Comey’s removal shows that not just prosecutorial decisions are at issue. Any personnel or management decisions taken by an official charged with supervising and conducting litigation and enforcement matters in the Executive branch can become grist for the criminal mill based solely on the official’s subjective State of mind. All that is needed is a claim that a supervisor is acting with an improper purpose and any act arguably constraining a case — such as removing a U.S. Attorney — could be cast as a crime of obstruction.
.. It is inconceivable to me that the Department could accept Mueller’s interpretation of §1512(c)(2). It is untenable as a matter of law and cannot provide a legitimate basis for interrogating the President. I know you will agree that, if a DOJ investigation is going to take down a democratically-elected President, it is imperative to the health of our system and to our national cohesion that any claim of wrongdoing is solidly based on evidence of a real crime — not a debatable one. It is time to travel well-worn paths; not to veer into novel, unsettled or contested areas of the law; and not to indulge the fancies by overly-zealous prosecutors.
.. First, the sweeping interpretation being proposed for § 1512’s residual clause is contrary to the Statute’s plain meaning and would directly contravene the Department’s longstanding and consistent position that generally-worded statutes like § 1512 can not be applied to the President’s exercise of his constitutional powers in the absence of a“clear statement”in the statute that such an application was intended.
Second, Mueller’s premise that, whenever an investigation touches on the President’s own conduct, it is inherently “corrupt” under § 1512 for the President to influence that matter is insupportable. In granting plenary law enforcement powers to the President, the Constitution places no such limit on the President’s supervisory authority. Moreover, such a limitation cannot be reconciled with the Department’s longstanding position that the “conflict of interest” laws do not, and cannot, apply to the President, since to apply them would impermissibly “disempower” the President from supervising a class of cases that the Constitution grants him the authority to supervise.
.. Third, defining facially-lawful exercises of Executive discretion as potential crimes, based solely on subjective motive, would violate Article II of the Constitution by impermissibly burdening the exercise of core discretionary powers within the Executive branch.
.. Fourth, even if one were to indulge Mueller’s obstruction theory, in the particular circumstances here, the President’s motive in removing Comey and commenting on Flynn could not have been “corrupt”unless the President and his campaign were actually guilty ofillegal collusion. Because the obstruction claim is entirely dependent on first finding collusion, Mueller should not be permitted to interrogate the President about obstruction until has enough evidence to establish collusion.
President Trump so alarmed his defense secretary, Jim Mattis, during a discussion last January of the nuclear standoff with North Korea that an exasperated Mr. Mattis told colleagues “the president acted like — and had the understanding of — a ‘fifth or sixth grader.’”
At another moment, Mr. Trump’s aides became so worried about his judgment that Gary D. Cohn, then the chief economic adviser, took a letter from the president’s Oval Office desk authorizing the withdrawal of the United States from a trade agreement with South Korea. Mr. Trump, who had planned to sign the letter, never realized it was missing.
.. book by Bob Woodward that depicts the Trump White House as a byzantine, treacherous, often out-of-control operation — “crazytown,” in the words of the chief of staff, John F. Kelly — hostage to the whims of an impulsive, ill-informed and undisciplined president.
.. The White House, in a statement, dismissed “Fear” as “nothing more than fabricated stories, many by former disgruntled employees, told to make the president look bad.”
.. Mr. Woodward portrays Mr. Mattis as frequently derisive of the commander in chief, rattled by his judgment, and willing to slow-walk orders from him that he viewed as reckless.
.. Mr. Trump questioned Mr. Mattis about why the United States keeps a military presence on the Korean Peninsula. “We’re doing this in order to prevent World War III,” Mr. Mattis responded, according to Mr. Woodward.
.. In April 2017, after President Bashar al-Assad of Syria launched a chemical attack on his own people, Mr. Trump called Mr. Mattis and told him that he wanted the United States to assassinate Mr. Assad. “Let’s go in,” the president said, adding a string of expletives.
The defense secretary hung up and told one of his aides: “We’re not going to do any of that. We’re going to be much more measured.” At his direction, the Pentagon prepared options for an airstrike on Syrian military positions, which Mr. Trump later ordered.
.. another layer to a recurring theme in the Trump White House: frustrated aides who sometimes resort to extraordinary measures to thwart the president’s decisions — a phenomenon the author describes as “an administrative coup d’état.” In addition to Mr. Mattis and Mr. Cohn, he recounts the tribulations of Mr. Kelly and his predecessor, Reince Priebus, whose tensions with Mr. Trump have been reported elsewhere.
.. Mr. Cohn, Mr. Woodward said, told a colleague he had removed the letter about the Korea free trade agreement to protect national security. Later, when the president ordered a similar letter authorizing the departure of the United States from the North American Free Trade Agreement, Mr. Cohn and other aides plotted how to prevent him from going ahead with a move they feared would be deeply destabilizing.
.. Last January, Mr. Woodward writes, Mr. Dowd staged a practice session in the White House residence to dramatize the pressures Mr. Trump would face in a session with Mr. Mueller. The president stumbled repeatedly, contradicting himself and lying, before he exploded in anger.
.. Mr. Woodward told Mr. Trump he interviewed many White House officials outside their offices, and gathered extensive documentation. “It’s a tough look at the world and the administration and you,” he told Mr. Trump.
“Right,” the president replied. “Well, I assume that means it’s going to be a negative book.”
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.”
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.
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.
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.”
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.”
If the president does not want to testify in Robert Mueller’s investigation, there simply is no realistic way for the courts to physically force him to do so.
they are pursuing a fresh line of attack in public, shifting from proclaiming the president’s innocence to attempting to undermine the probe itself.
.. Giuliani previously said that he’d negotiate an end to the probe within a week or two, which didn’t happen, and the president said he was wrong about some aspects of a reimbursement to former fixer Michael Cohen. But Giuliani’s remarks make clear that far from ruling out an interview, the president’s team continues to work toward a meeting with Mueller.
.. it was only two months ago that Trump first singled Mueller out by name in a tweet.
.. The new strategy, particularly as demonstrated by Giuliani on CNN, follows three prongs.
- First, impugn the investigators themselves.
- Second, argue that the investigation was tainted from the start.
- Third, argue that Mueller cannot indict Trump anyway.
.. The Cobb-Dowd strategy began with the assumption that Trump had nothing to hide. The new strategy, however, seems to take as its premise that Trump is guilty of at least something.
Mueller, a lifelong Republican who has served presidents of both parties, is a tougher case to make, so Trump has simply lied, claiming for example that Mueller worked for Barack Obama for eight years. Mueller was FBI director for nearly five years under Obama, having been appointed by George W. Bush... Giuliani, for his part, has referred to officials in the FBI and U.S. Attorney’s Office for the Southern District of New York, both of which he praised in the recent past, as “storm troopers.”.. They argue that the fact that the FBI was investigating Trump as far back as 2016 shows not only political motivation, but also that there is nothing to investigate... The setting of arbitrary timelines is a common motif. Trump has repeatedly said there is no evidence of collusion, even as two of his former aides have pleaded guilty to lying to the FBI about contacts with the Russians, and despite the June 2016 Trump Tower meeting between a Russian lawyer, Donald Trump Jr., Jared Kushner, Paul Manafort, and others. Giuliani on Friday charged that Mueller’s probe “$20 million later has come up with nothing,” when in fact the investigation has been unusually prolific.
.. It may or may not be true that DOJ placed a spy in the Trump campaign, but there’s no public evidence for it. Someone inside informing the FBI about goings-on is not the same as the Justice Department sending someone under cover. Nor is it scandalous for law enforcement to use legal methods to investigate possible crimes... We’ve heard this again and again. First, Trump claimed that Obama had “tapped” Trump’s “wires” during the campaign. This remark turned out to be nonsense, the result of a game of speculation in conservative media. Trump’s Justice Department said it was not true. Later, when it became clear that Manafort had been surveilled, some of Trump’s defenders claimed it vindicated his wiretap claim, which it did not, as I explained at the time. That’s a good reason to take the most recent claims skeptically, too. When Cuomo pointed out that Trump has often said false things, Giuliani blustered, “That’s a disgraceful comment about the president of the United States.” But he didn’t say Cuomo was wrong... if anyone did commit crimes, they were being entrapped and led into crimes by DOJ infiltrators who sought to take down Trump’s campaign... One doesn’t talk about whether or not one’s client can be indicted unless one believes that one’s client is likely to have committed some indictable crime. But the presumption of guilt has increasingly suffused the message of Trump defenders over the last month. It also surges through repeated warnings from Trump allies that Mueller might try to catch the president in a “perjury trap,” as though Trump could not avoid that by telling the truth... The president appreciates aggressive media responses, and Giuliani is to a certain extent just aping the president’s own words.