The Wall Street Journal reported this week on two memos President Trump’s lawyers prepared for special counsel Robert S. Mueller III:
One memo submitted to Mr. Mueller by the president’s legal team in June laid out the case that Mr. Trump has the inherent authority under the constitution to hire and fire as he sees fit and therefore didn’t obstruct justice when he fired Mr. Comey as director of the Federal Bureau of Investigation in May, these people said.
Another memo submitted the same month outlined why Mr. Comey would make an unsuitable witness, calling him prone to exaggeration, unreliable in congressional testimony and the source of leaks to the news media, these people said.
As legal arguments, these are pathetic. Taking the last one first, arguing to Comey’s long-time colleague Mueller that Comey is a liar won’t win the day, nor does it pass the laugh test. Comey’s testimony will be lined up against written evidence and other witness testimony and actually may come out looking even more credible as a result. This is the sort of weak assertion one would make on Sean Hannity’s show; it’s not worthy of consideration by Mueller or any other serious prosecutor.
The “he can fire at will” argument is obviously flawed for at least three reasons. The argument is so bad one wonders if the Trump team is not ready for prime time or is simply trying to provide fodder for his cult-like following to support him if he tries to fire Mueller.
First, simply because Trump has the power to do something doesn’t mean he can do so with corrupt intent. That is the essence of bribery and other corruption statutes. Trump has the power to veto a bill, but not if it is a quid pro quo for a bribe. Jed Shugerman of Fordham law school explains, “Even if the president has the power to do something, he can’t exercise that power for an illegal purpose. A president can order a military strike, but if his intent was to kill a person who slept with his wife, he is guilty of murder.” He continues, “And if he fires someone in order to impede a valid investigation into his own campaign, which Trump has essentially confessed on national TV, he is guilty of obstruction of justice. If they were debating only that basic point with Mueller, then their client is in serious trouble.”
Second, firing Comey isn’t the half of it. Trump first tried to shut down the prosecution by asking Comey directly, then by imploring his director of national intelligence Dan Coats and his NSA director Mike Rogers to intervene. When that did not work he not only fired Comey but concocted a phony cover story, sent his vice president out to misrepresent the reason for the firing, tried to intimidate Comey when he hinted at the existence of White House tapes and then retaliated against him with his attempt to call off prosecution.
Third, Mueller has the option, as did the independent prosecutors in Watergate, to make a referral — in essence a recommendation — to the House to proceed with impeachment. There is little doubt that the course of action as it has been described by witnesses and credible press accounts lines up with the articles of impeachment the House was ready to approve in Watergate. In Article 1, for example, the House was prepared to allege that Nixon had been “interfering or endeavoring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special Prosecution Force, and Congressional Committees.”
Jeffrey Toobin has reached the same conclusion (“if Comey was telling the truth in this memo, and obviously there’s a dispute about that from the FBI — from the White House, but if he’s telling the truth, I don’t know how anyone can see this comment as anything but obstruction of justice”) as has former Republican White House ethics counsel Richard Painter. (“I believe obstruction of justice would be occurring if there were an express or implied threat to fire the FBI director if he did not drop the Flynn investigation or other parts of the Russia investigation,” he said. “That’s obstruction of justice. The president fired the FBI director.”)
In sum, the two memos to the special prosecutor are so lacking in merit one wonders why Trump’s attorneys bothered. As Constitutional guru Larry Tribe remarked to me, “To be candid, if the memos submitted by the President’s lawyers are as the Wall Street Journal reports, they’re quite stupid. Nothing in the analysis the Journal recounts could possibly persuade anyone remotely familiar with the constitutional origins of the impeachment clause, its historical interpretation, or its settled objectives.” Maybe the president needs better lawyers.