Trump’s assertion of unlimited authority
In a confidential, 20-page memo, President Trump’s legal team told special counsel Robert Mueller that the president has limitless authority over federal investigations and thus cannot be charged with obstructing justice. The January 2018 document, obtained by The New York Times, asserts that the president could at any time “terminate the inquiry” into Russian interference in the 2016 election, or pardon anyone under investigation. It also contends that Trump cannot be subpoenaed and that submitting to an interview would demean the office of the presidency, which must remain “sacred and above the fray of shifting political winds and gamesmanship.”
In a stunning revelation, the letter acknowledged the president dictated Donald Trump Jr.’s misleading July 2017 statement regarding his meeting with a Russian informant at Trump Tower during the 2016 campaign—something the president, his press secretary Sarah Huckabee Sanders, and his attorneys had previously repeatedly denied. That statement said the meeting was primarily about “adoptions” of Russian children, neglecting to mention that Russians connected to the Kremlin had promised damaging information about Hillary Clinton. “This is the reason you don’t let the president testify,” Trump attorney Rudy Giuliani told ABC News. “Our recollection keeps changing.”
Trump took his frustrations to Twitter, declaring “an absolute right to PARDON myself” and slamming the investigation as a Democrat-led “never ending Witch Hunt” that’s “totally UNCONSTITUTIONAL!” The president also tweeted that he would have nominated someone other than Jeff Sessions as attorney general had he known Sessions would recuse himself from overseeing the Russia investigation. Trump has repeatedly pressured Sessions to reverse that recusal, The New York Times reported—requests that Mueller has made part of his obstruction investigation.
“Like kings and emperors of ages past,” Trump not only thinks he is above the law—“he thinks he is the law,” said the Los Angeles Times. Trump is warning Mueller that any attempt to prosecute him, his aides, or his family is a waste of time, as he’ll just pardon everyone, including himself, and “move on.” Sadly, this arrogance is not surprising, said The New York Times. Trump has long been drawn to the “monarchical grandeur” of the office but has little understanding of the constitutional limits to presidential power. Even more troubling, he’s now accusing Mueller of “meddling” in the November midterms by refusing to end his investigation. This sets up a Trump claim that if Democrats take control of the House, the election was “rigged” and invalid.
Trump’s lawyers make many “highly debatable” assertions, said the National Review, but their memo got two major points correct. Despite collecting “voluminous documentary evidence” and testimony, Mueller has yet to present a “viable criminal case against the president,” nor has he “justified the extraordinary measure of seeking the president’s testimony.” Absent a “smoking gun,” Mueller should wrap up the obstruction probe of the president rather than keep looking for one.
Trump’s lawyers have made an “extreme and outrageous” argument, said Indira Lakshmanan in The Boston Globe. Despite “jaw-dropping” evidence of Trump campaign contacts with the Russians and an ongoing cover-up, the president’s legal team is insisting the president has absolute power to end the inquiry for any reason. This is reminiscent of Richard Nixon’s claim that “when the president does it that means it’s not illegal,” and King Louis XIV’s notorious decree “L’état, c’est moi” (“I am the state”). This memo is essentially an admission of guilt, said Eugene Robinson in The Washington Post. Trump’s own attorneys concede he lied about meetings between his campaign and Russians, fired people investigating his aides, and can’t be trusted to answer questions. Their legal defense: “None of that matters,” because Trump has absolute, unchecked power.
Actually, Trump’s lawyers are right, said Michael Graham in CBSNews.com. The president has more important things to do than preparing for an interview with Mueller, especially with a majority of Americans considering the Russia investigation to be “politically motivated.” The public wants the president focused on the economy, trade, and national security. “Why shouldn’t Trump issue a pardon today and move on with being president?” Besides, Trump’s strategy is modeled after the one that worked for Bill Clinton, said Byron York in Spectator USA. The Clinton White House relentlessly attacked independent counsel Ken Starr and accused him of presiding over a partisan “witch hunt.” With Trump supporters “increasingly confident the big collusion charges just aren’t coming,” the president has the upper hand.
For now, he might, said Greg Sargent in The Washington Post, but Trump’s assertion of “near-dictatorial powers” indicates how “weak and precarious” his position has become. Senate investigators have already shown that just before Trump Jr. met with the Russians, he made or received a phone call from a blocked number. Was the call from Donald Sr., who had a blocked Trump Tower number? Mueller knows. Based on the president’s growing hysteria, the special counsel knows a lot more that the public does not.
If Mueller decides to test Trump’s assertions in court, said Abigail Tracy in VanityFair.com, the president is likely to lose. Most constitutional scholars and legal experts dismiss the president’s insistence he cannot obstruct justice, and precedent suggests that Trump can indeed be subpoenaed. As for pardoning himself, that has never been tested, but Republicans are already warning against it. House Speaker Paul Ryan said Trump should “obviously” not pardon himself, adding, “No one is above the law.” To get Trump’s testimony, Mueller might not even need to take the president to court, said Ruth Marcus in The Washington Post. When Starr subpoenaed Clinton in 1998, the president backed down and agreed to a four-hour interview at the White House, avoiding the dangerous and diminishing spectacle of testifying before a grand jury. If I were advising Mueller, “I’d suggest it’s subpoena time.”