President Trump Thinks He Is a King
By Harry Litman
Mr. Litman is a former United States attorney and deputy assistant attorney general.
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President Trump on Thursday.CreditDoug Mills/The New York Times
The president believes he is above the law. That’s the takeaway from the confidential 20-page memo sent by President Trump’s lawyers to the special counsel, Robert Mueller,
published over the weekend by The Times. And it’s the same sentiment that Rudy Giuliani expressed on Sunday when he suggested that Mr. Trump has the power to pardon himself.
The central claim of the legal memorandum is that it is impossible for the president to illegally obstruct any aspect of the investigation into Russia’s election meddling. That’s because, as president, Mr. Trump has the constitutional power to terminate the inquiry or pardon his way out of it. Therefore — and this is the key and indefensible point — he cannot obstruct justice by exercising this authority “no matter his motivation.”
This understanding of presidential power is radical and absolutist. It is also unsound and almost certain to be sharply rejected should it ever be proffered in court.
Even granting the contention that Mr. Trump could simply terminate the investigation, it is a non sequitur to argue, as the president’s lawyers do, that as a consequence he cannot
obstruct it. Imagine, for example, that the worst version of facts proves true: that Trump fired the F.B.I. director, James Comey, tried to fire Mr. Mueller, constructed a false account of the June 2016 Russia meeting, and tried to force Attorney General Jeff Sessions to reverse his recusal decision that was driven by Justice Department policy, all to protect his own skin and his family’s fortune.
If this were the case, the elements of obstruction — in brief, the interference or attempted interference with an official proceeding, such as a grand jury investigation — would be plainly met. Most important, the president would have acted with corrupt intent as it is well understood under the law.
No tenable account of executive power holds that a president’s purposes in exercising powers accorded under Article II, “to take Care that the Laws be faithfully executed,” have no import. If it were otherwise — if the president had the authority to use his constitutional powers for any reason — it would follow that he could accept a bribe for doing an official act, or, more saliently, extend a pardon to keep a witness from testifying. This would very clearly violate the maxim that the president is not above the law.
If this sounds like legal theorizing, just consider the fact that Mr. Trump’s position is soundly contradicted by the Richard Nixon case. Under Mr. Trump’s view, Nixon would not have been guilty of obstruction for ordering the F.B.I. to stand down on the investigation of the Watergate burglars or paying off the defendants to keep them quiet.
Subsequent investigations into alleged abuses of presidential power — Iran-contra as well as Whitewater — took it as accepted law that the president is capable of obstructing justice. And while the case of the president can present challenging legal and practical questions of enforcement, both because the president is the head of the executive branch and because of the political levers he can pull, there is scant support among constitutional scholars or in the case law for the president’s drastic argument.
The second pillar of the letter submitted by Mr. Trump’s lawyers to Mr. Mueller is that he is too busy running the country to sit for an interview. Relatedly, they argue, forcing him to testify “demeans the office of the president before the world.”
Here Mr. Trump’s position run completely afoul of another presidential precedent: that of Bill Clinton. Mr. Clinton argued to the Supreme Court that the demands of sitting for a deposition in the Paula Jones case would leave him unable to discharge satisfactorily his unique constitutional responsibilities. The Supreme Court rejected the argument unanimously, and Mr. Clinton was forced to testify, initiating an indecorous process that led to his impeachment.
The decision was so resounding, and the precedent so apposite, that it’s puzzling that Mr. Trump’s lawyers would even attempt to make it a main plank of their argument to the special counsel. Perhaps they are relying on the distinction between a civil and a criminal deposition, which no president has been ordered to sit for. But it is strained to argue that the fact of the criminal investigation would make Mr. Trump’s testimony either be more time-consuming or more demeaning than was Mr. Clinton’s.
Mr. Trump’s lawyers finally offer a factual argument, that he could not have intentionally impeded the F.B.I.’s investigation because he did not know that his national security adviser, Michael Flynn, was under investigation when he asked Mr. Comey if he could “see his way clear to letting it go.”
First of all, Mr. Mueller may or may not see the facts in the same way; we don’t know yet. But what we do know is that even if Mr. Trump’s point were factually accurate, it
would not foreclose an obstruction of justice charge.
All three of Mr. Trump’s pillars of defense support no weight. Mr. Mueller may have practical or policy reasons for staying his hand in finding obstruction, but he needn’t worry about the proffered legal impediments. They are all losers.
https://www.nytimes.com/2018/06/03/opinion/mueller-trump-executive-power.html
