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.”
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.
.. 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.
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.
In the past, Trump has been careful in his depositions, but since his mode of communication is highly dependent on jaw-dropping hyperbole, gross simplifications and misinformed or misleading assertions, it can’t be a good idea to put him under oath in any circumstance.
.. It also runs counter to the widespread assertion that Trump is “acting guilty,” when he may well be acting like Donald Trump — aggrieved, combative, scornful — when he’s innocent.