The Trump legal team’s letter to Mueller

Someone has leaked a confidential 20-page letter that President Trump’s legal team sent to Robert Mueller in January of this year. Not cool. The letter responded to Mueller’s request that Trump agree to be questioned about allegations that he committed obstruction of justice.

Trump’s team advised Mueller that the president would not agree to an interview. However, the lawyers said they would be willing to provide written answers to questions asked by Mueller’s team.

The letter is here, along with annotations by such anti-Trump New York Times reporters as Maggie Haberman. It’s is worth reading in its entirety — the letter, not the annotations — but I want to deal with only one statement.

Early in the letter, Trump’s legal team states:

It remains our position that the President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.

The New York Times and the Washington Post view this statement as a breathtaking assertion of presidential authority. Larry Tribe dismissed it as a Nixonian assertion that the president is above the law. Jack Goldsmith was measured. He told the Times:

We don’t know what the law is on the intersection between the obstruction statutes and the president exercising his constitutional power to supervise an investigation in the Justice Department. It’s an open question.

For what it’s worth, I believe the president does have the power to terminate Mueller’s investigation and to pardon those being investigated, including, probably, himself. However, I don’t agree that, while an investigation is pending, it is constitutionally and legally impossible for the president to obstruct it.

If, for example, the president were to bribe or threaten witnesses, or just even encourage them to lie, that would be obstruction of justice, as I see it. Trump’s lawyers’ claim that this “would amount to obstructing himself” seems specious. The president is formally in charge of the investigation, but he is not the investigation, nor is he justice.

The letter says “the President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction. . .” (Emphasis added) It’s not clear what, if anything, Trump’s lawyers mean by “here.” Perhaps “here” means the things encompassed by the 16 topics Mueller’s team said it wants to interview Trump about. These items are listed in the letter two paragraphs above the one that’s causing so much controversy.

Most of these items pertain to matters that, in my view, indeed cannot be obstruction of justice, given the president’s powers. One example is item #13: “Whether or not Mr. Comey’s May 3, 2017, testimony lead to his termination.” Trump has the power to fire Comey because of his testimony (or for any other reason). Another is item #15: “The President’s interaction with Attorney General Sessions as it relates to the appointment of Special Counsel.” Trump can interact with Sessions about the appointment of Mueller however he pleases.

But if Trump’s lawyers were saying it’s impossible for a president to obstruct justice because he’s the nation’s chief law enforcement officer, they went too far. Or so it seems to me.

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