THE MORNING PLUM:
Rudy Giuliani, who is rumored to be President Trump’s lawyer, has rolled out a new set of demands that must be met in exchange for Trump agreeing to an interview with special counsel Robert S. Mueller III. But in so doing, Giuliani has inadvertently shed light on the weakness of Trump’s political position, in the face of a coming confrontation with Mueller and, looming behind that, the midterm elections.
In an interview with the Wall Street Journal, Giuliani said Trump’s team has submitted a new offer to Mueller: Trump will agree to a sit-down with the special counsel, but it wants questions about obstruction of justice, and Trump’s firing of former FBI director James B. Comey, to be off the table:
The president’s legal team is open to him answering questions about possible collusion with Moscow, Mr. Giuliani said, but is less willing to have Mr. Trump discuss questions about obstruction of justice.
“We think the obstruction of it is handled by Article 2 of the Constitution,” Mr. Giuliani said, referring to the provision that gives the president executive authority to appoint and dismiss members of his administration. …
Mr. Giuliani said … that the reasons Mr. Trump has given for firing the former FBI director are “more than sufficient” and that as president, he had the power to fire any member of his administration.
By invoking Article II of the Constitution as the reason Trump should not be questioned by Mueller, Giuliani appears to be saying Trump cannot be legally liable for obstruction of justice by definition. He can fire members of his administration at will, and as the head of the executive branch, he has control over all Justice Department investigations, including into himself. Therefore, there is no reason for Mueller to question him about such actions.
This roughly matches the theory laid out in that recent memo by Trump’s lawyers, which asserted that as “chief law enforcement officer,” Trump’s actions can “neither constitutionally nor legally constitute obstruction,” and that “he could, if he wished, terminate the inquiry” into himself. There is a separate question over whether a sitting president can be indicted for obstruction while in office — a question on which experts differ — but Trump’s team is going further, claiming he cannot commit obstruction to begin with.
Notably, however, Giuliani isn’t merely claiming that Trump is constitutionally immune from committing obstruction and/or getting indicted for it. He’s saying that this should also insulate Trump from any questioning about his actions in this regard. And in making that argument, Giuliani is likely hoping to protect Trump from impeachment, never mind protecting him from legal liability.
The view that a president cannot commit obstruction is strongly contested by some experts, who argue that obstruction statutes can and should apply to the president if he acts with corrupt intent. But regardless of your view on that question, a president can still be impeached for it. Indeed, that has already happened.
What’s more, there is a strong public interest in seeing Trump questioned about his intent in demanding Comey’s loyalty; leaning on Comey to drop the probe into his former national security adviser; subsequently firing Comey and admitting on national television that he was angry about the Russia probe; pressuring his attorney general to protect him from that investigation; and pressing his White House counsel to fire Mueller, among other obvious efforts to scuttle a full accounting of Russian sabotage of our election and Trump campaign collaboration with it.
By moving to place all of this off limits, Giuliani is “taking the Article II argument further than I’ve ever seen it taken before,” Stephen Vladeck, a law professor at the University of Texas at Austin, told me. “There’s no suggestion anywhere in the caselaw, or in the relevant opinions by the Office of Legal Counsel, that things for which the president cannot be held criminally liable or indicted are also things on which he cannot be questioned.”
Trying to have it both ways
By making this argument, Giuliani is trying to have it both ways. The claim that a president cannot be criminally liable for obstruction rests on the idea that true accountability for a sitting president resides in impeachment. Indeed, Giuliani himself has made this case elsewhere, claiming that the Justice Department cannot hold Trump accountable because it is “a creature of the president,” and that instead he is “constrained” by “Congress’ impeachment power.”
But Giuliani is now saying that Trump also must not be questioned about actions for which he might be held accountable by Congress’ impeachment power. “On the one hand, they’re saying impeachment is the only remedy,” Vladeck says. “But on the other, they’re saying the president should only answer questions about things for which he can be held criminally liable or indicted, while saying the president can’t be held criminally liable or indicted for anything.”
Ultimately what this absurdity really amounts to is a ham-handed effort to put Trump beyond accountability entirely. He isn’t criminally liable, because the only remedy is impeachment; but he must not face questions designed to ferret out the full truth about his potentially impeachable actions, either.
Which reveals the fundamental weakness of Trump’s political position right now. Giuliani does not want Trump to face questions about obstruction because he is likely to incriminate himself further in ways that will make the impeachment case against him stronger.
Of course, the GOP-controlled House will never impeach Trump, no matter what he says to Mueller. But Mueller will prepare a report on Trump’s obstruction, and whatever Trump says in a sit-down with Mueller would likely figure into that account. Meanwhile, the chances are rising that Democrats will take back the House. And if they do, that Mueller report — complete with Trump’s own self-incriminating statements — would then give Democrats more ammunition to pursue impeachment themselves. To the degree that the prospect of a Democratic-controlled House becomes more likely, that makes an interview with Mueller even more perilous for the president.
Update: I should have noted that Giuliani made a similar demand in an interview with The Post ten days ago.
* HOUSE TILTS TOWARDS DEMOCRATS: Sabato’s Crystal Ball, which had long said the House is even odds, is now shifting a bunch of races in Democrats’ direction, and says they have better than 50-50 odds of taking control:
The president’s approval rating is still largely stuck in the low 40s … for most of this election cycle the generic ballot has shown a consistent Democratic lead that suggests a very competitive battle for the majority. A high number of open seats … give Democrats many more targets than the GOP … Special elections at the state and federal level … have generally shown Democrats improving on Hillary Clinton’s district-level performance, often drastically.
Looks like Alexandria Ocasio-Cortez, “Abolish ICE” and Trump hatred are really dooming Democrats’ chances.
* ADVISERS STRUGGLE TO EXPLAIN IRAN TWEET: The New York Times reports that in the wake of Trump’s tweet threatening Iran, White House advisers are “united in their hostility to engaging with Iran,” even as Iran is unlikely to bend to Trump’s Twitter feed. Note this:
[The tweet] only deepened questions about the long-term direction of Mr. Trump’s Iran policy. … The White House scrambled to lend a veneer of coordination to Mr. Trump’s outburst. … A senior administration official said it augured a “more aggressive, comprehensive approach” to Iran. Other people who know Mr. Trump said his decision to respond in such fiery terms was driven almost entirely by his search for a distraction from questions about Russia.
It’s really reassuring that no one — not even the people closest to Trump — has any idea what he meant or what his intentions are, isn’t it?
* BOLTON IS PSYCHED ABOUT IRAN TWEET: The Post reports on John Bolton’s response to the tweet:
“I spoke to the president over the last several days, and President Trump told me that if Iran does anything at all to the negative, they will pay a price like few countries have ever paid before,” said Bolton, who has advocated regime change in Iran in the past.
Can’t you just feel the excitement?
* TRUMP APPROVAL IN THE TOILET: Gallup finds that Trump’s approval was an average of 41.9 percent during the second quarter of 2018, his best, but only by less than 1 point. And:
Compared with the nine other post-World War II presidents elected to their first term in office, Trump had lower support than all but one [Jimmy Carter]. … Several other recent presidents were also, like Trump, below majority level approval at this point in their presidencies, including Ronald Reagan (44.2%), Bill Clinton (46.1%) and Barack Obama (47.3%). Those three presidents, similar to Carter but unlike Trump, were serving during challenging economic times.
Trump’s approval is the worst in 40 years, and three previous presidents who had higher approval were presiding over worse economies.
* GERRYMANDERING REFORM GAINS MOMENTUM: The New York Times reports that state ballot initiatives to end gerrymandering are gaining momentum, with new ones set for this fall in states such as Missouri, Colorado and Utah:
Legal experts and advocates say the campaign to end gerrymandering has other options it can pursue besides ballot initiatives. Many states have constitutions that may offer more scope for lawsuits challenging gerrymandered maps than the federal courts do. … And legislatures in some states, like Colorado, have begun to ponder whether the political and legal toll from partisan redistricting outweighs the advantages.
Of course, as the Times notes: “Republicans have denounced attacks on gerrymanders as assaults on their political power.” They are indeed.
* TRUMP LIES … AND LIES … AND LIES: The Post’s fact-checking team has a useful takedown of all the lies and distortions Trump has tweeted about the new FISA documents, which blow up the narrative he has pushed about the wiretapping of Carter Page. This is a good point:
The president also ignores the fact that the Page wiretap was extended by different judges three more times. While the material justifying the extensions is redacted, the length of the application kept growing at every step, suggesting that the FBI was gathering useful evidence from the wiretap and using that evidence to request extensions.
And those extensions were granted by FISA court judges appointed by GOP presidents.
* PUBLIC SUPPORT SOARS FOR ROE V. WADE: A new NBC-Wall Street Journal poll finds that 71 percent of American voters support the Supreme Court decision upholding a woman’s right to an abortion, vs. only 23 percent who oppose it:
That’s the highest level of support for the decision — and the lowest share of voters who want Roe v. Wade overturned — in the poll’s history dating back to 2005. … Those supporting the ruling include 88 percent of Democrats, 76 percent of independents and a majority — 52 percent — of Republicans.
We often hear that the country is closely divided on abortion, but on the right to an abortion, there is broad consensus. (The minority president’s two court nominees will probably vote to overturn it.)
* AND WHITE HOUSE BRACES FOR ‘LIFE AFTER SARAH’: Politico reports that White House insiders expect White House press secretary Sarah Sanders to depart soon, and discussions are underway over her possible replacement:
At the top of the list is Heather Nauert, the current State Department spokeswoman and former Fox News host. … Other possibilities include Bill Hemmer, a Fox News reporter; Kimberly Guilfoyle, a former Fox News host who recently left the network to join a pro-Trump outside group; Treasury Department spokesman Tony Sayegh, who worked closely with the White House on its overhaul of the tax code and used to be a Fox News contributor; and White House deputy press secretary Raj Shah.
Boy, that’s a lot of people with experience at Fox News. In fairness, it’s hard to imagine a better training ground for the task of spinning for Trump.