Any discussion of President Trump’s lawyers’ written claims and his current TV lawyer’s sweeping declarations must be premised on recognizing: 1. The lawyers change their minds; 2. The lawyers don’t necessarily speak for Trump; 3. The lawyers may not be lawyering at all, just putting out fodder for Trump’s base to keep spirits high and brains dulled. Nevertheless, let’s consider the various assertions recently made by Trump’s team.
The New York Times got the ball rolling with a letter from John M. Dowd (since departed from the Trump legal squad) and Jay A. Sekulow to special counsel Robert S. Mueller III written in January. The lawyers made a variety of jaw-dropping claims and admissions. For starters, the lawyers admit that Trump dictated on Air Force One an explanation for a June 2016 meeting held with a Russian lawyer. This directly contradicts prior assertions from Sekulow that Trump had nothing to do with the statement, which set out a false explanation for the meeting between Donald Trump Jr., Paul Manafort, Jared Kushner and assorted Russian figures.
We should pause right there to consider the confession, for that is what it is, that the president put out a statement falsely portraying a meeting that was related to an ongoing investigation into Russian meddling with the 2016 presidential election. Even defenders of broad presidential power to hire and fire executive branch employees lack an argument that drafting a fake explanation to throw off an ongoing investigation is somehow within Trump’s Article II powers.
Now, Trump’s attorneys apparently consider this no big deal. For one thing, Rudolph W. Giuliani asserted that Trump cannot obstruct justice — but he also waffled on that stunning declaration. On ABC’s “This Week,” Giuliani refused to rule out that argument. (Save it for the end when you’ve run out of other arguments, he advised.) On “Meet the Press,” he had this head-spinning exchange:
CHUCK TODD: All right, let me ask this because it’s also from the statement. Let’s unpack this again. You say that he could terminate the inquiry. Does this mean he can terminate any federal investigation? Is that, is that the argument here? Any federal investigation, he can terminate?
GIULIANI: Well, yeah. That, that is pretty clear. I mean, the power of the attorney general, he’s a presidential appointee. When I was a U.S. attorney I had the power of — I was appointed by President Reagan. Nobody ever attempted to terminate an investigation. It would have probably been a scandal of immense proportions unless I was being an idiot. So that’s a very unrealistic thing. But if you’re asking the theoretical sense . . . I mean, it would — it could lead to impeachment, it could lead to, I mean, if he terminated an investigation of himself, it could lead to all sets of consequences.
TODD: But constitutionally you’re making the argument that you think, constitutionally, he could, is what you’re saying.
GIULIANI: I’m saying constitutionally it sure looks that way. I haven’t made that argument.
Well, Giuliani was open to idea of Trump pardoning himself. Giuliani and argued — and argued against (I think) — that proposition on ABC’s “This Week”:
GEORGE STEPHANOPOULOS: The letter also cites the president’s pardon power. Do you and the president’s attorneys believe the president has the power to pardon himself?
GIULIANI: He — he’s not, but he probably does. He has no intention of pardoning himself but he probably — not to say he can’t. I mean, that — that’s another really interesting constitutional argument, can the president pardon himself.
STEPHANOPOULOS: Do you think it’s an open question?
GIULIANI: It would be an open question. I think it would probably get answered by, gosh, that’s what the Constitution says and if you want to change it, change it. But yes.
A pack of constitutional experts savaged the argument that Trump could never be prosecuted for obstruction. Daniel Hemel writes:
The Declaration of Independence charged King George III with “obstruct[ing] the administration of justice, by refusing his assent to the laws for establishing judiciary powers.” That alone is evidence that the founding generation did not believe that heads of state were immune from obstruction charges. And while Article II instructs the president to “take care that the laws be faithfully executed,” that does not give him carte blanche to wield his law enforcement powers any way he chooses.
Trump is not the first sitting president to face accusations of obstruction of justice. During the Watergate scandal, the first article of impeachment approved by the House Judiciary Committee charged Richard Nixon with obstructing justice by endeavoring to influence an FBI investigation into the break-in at the Democratic National Committee headquarters. That article passed the committee by a 27-11 vote, with six Republicans joining all the committee’s Democrats in the majority. . . . a president commits criminal obstruction only when he abuses his power over law enforcement for personal, pecuniary, or purely partisan ends. But Dowd’s claim that the obstruction statutes never apply to the president is without merit.
Laurence Tribe likewise tweeted: “Trump’s lawyers’ sweepingly Nixonian claim of unbounded presidential power is inconsistent with the core American principle that no-one is above the law. It would mean that even pardoning someone in return for a bribe is just fine. That’s simply wrong.”
And last December, Lawfare blog’s Ben Wittes explained:
That is, as long as the President is operating plausibly within the boundaries of the Take Care Clause, which requires that he “Take Care that the laws be faithfully executed,” and within the parameters of his oath to “faithfully execute” the duties of President, he probably cannot be said to act with the requisite criminal intent to violate the obstruction statutes with an otherwise lawful act of managing the Executive Branch. But I do think it’s at least theoretically possible for the President to issue orders to the Executive Branch that are so outside of the bounds of those clauses that a reasonable jury could lawfully regard him as acting with the requisite mens rea for conviction under one or more of the statutes.
One of those instances would be falsifying explanations for a meeting involving his son and son-in-law, a meeting that concerned cooperation between Russian operatives and the president’s campaign.
Trump’s lawyers, in making such a ludicrous claim of power, make both a constitutional and political error. The political error is nearly as great as the constitutional flaw is (i.e. we are not an absolute monarchy). Democrats have been struggling with how to address the “I” word (impeachment) in the campaign. Now they have the most powerful argument imaginable in the first referendum on the president since his election: Republicans support Trump’s claim to absolute power; Democrats do not. Which party should we have control Congress?
In their sweeping assertion of president power, the lawyers also asserted in the January letter, “The president’s prime function as the Chief Executive ought not be hampered by requests for interview. Having him testify demeans the Office of the President before the world.” Aside from Trump’s own role in demeaning the office, the Supreme Court in the Richard Nixon and Paula Jones cases made clear the president was not immune from the operation of the legal system — either in civil or criminal matters. (President Bill Clinton later dropped his opposition to a subpoena in the Kenneth W. Starr investigation and voluntarily testified.)
Most tellingly, however, Giuliani let on why Trump’s lawyers desperately want to avoid his testifying: His memory and answers shift. Giuliani told Stephanopoulos: “I mean, this is the reason you don’t let the president testify. If, you know, every — our recollection keeps changing, or we’re not even asked a question and somebody makes an assumption. In my case, I made an assumption. And then we corrected and I got it right out as soon as as it happened. I think that’s what happened here.” Yes, when you have an habitual liar as a client, you try to prevent him from giving testimony.
Where does this leave us? Trump and his attorneys are prepared to argue that his power is near absolute to shut down investigations into his own conduct and that in any event he could pardon himself. That is not the system we have, but we are heading toward that constitutional face-off — especially if voters return GOP majorities ready to defend Trump’s claims to unfettered power.