As lawyers and watchdogs who have prosecuted and defended federal investigations of public officials for decades, we thought we had seen (and made) every argument. But the memorandum by President Trump’s lawyers that the New York Times published Saturday startled even us. We often have argued about whether a subject is innocent under the law — but never about whether a subject is above it entirely, as Trump’s lawyers contend.
The president’s lawyers first assert that he should not be subjected to an interview by special counsel Robert S. Mueller III because the documents in the case provide sufficient information by themselves. But that is at odds with the most basic principles of law enforcement. The potential case against Trump turns on his state of mind: whether the president corruptly intended to obstruct a pending or foreseeable proceeding. In every investigation where state of mind is an issue, speaking to those involved in the activities under investigation is critical to evaluating whether the actions in question were undertaken for an improper purpose. The letter does contain the lawyers’ arguments about what certain documents and events suggest about Trump’s state of mind. But that is a far cry from the president answering questions about what he intended when he took actions that appear to have been meant to interfere with a federal investigation of himself and those close to him. The president’s argument that he should be treated differently than every other person involved in a criminal investigation by the Department of Justice or any other federal law enforcement agency simply because he is the president is at odds with the bedrock principle in our system that no person is above the law.
There is no legal authority for this audacious position to sidestep presidential testimony, and the lawyers’ letter cites none. It points to a decision from the prosecution of Mike Espy, former agriculture secretary in the Clinton administration — but that case simply stands for the proposition that before the president is required to provide testimony or documents, it must be shown that the information sought is relevant, admissible in a proceeding and not readily available from another source. In Mueller’s investigation, of course, there is no better way to determine the president’s intent than to hear from the president himself. His lawyers’ argument devolves into nonsense when they contend that former FBI director James B. Comey is lying about his conversations with Trump, but that it is not necessary for Mueller to interview the only other witness to those conversations — Trump.
The next argument, via his lawyers, is that it is not possible for him to obstruct justice — even if he did seek to interfere with the investigation to protect himself, his family or his cronies. This has no basis in the law, either, as we have explained in a Brookings report. The claim that a president can order the end of an investigation “at any time and for any reason” ignores the fact that, even if a public official has the authority to take some action, the law still forbids it being done for an improper reason. That is why public officials are regularly prosecuted for taking bribes to pass laws or take action that would have otherwise been proper if not for the unlawful payment. Similarly, police officers, judges, lawyers and others have been convicted of obstructing justice for taking action that would have otherwise been lawful, but for the fact it was undertaken for an improper purpose — to interfere with a criminal investigation or proceeding. Presidents are no exception, which is why obstruction charges featured prominently in the Clinton and nascent Nixon impeachments.
Trump’s attorneys turn next to a more typical legal claim: that he did not seek to interfere with a “proceeding” as required under the obstruction statutes, and, therefore, the statutes do not apply. But — like so much else in the lawyers’ letter — that prompts the question of what the president knew and intended. While the president’s lawyers correctly argue that an FBI investigation alone generally does not constitute a proceeding for purposes of triggering obstruction liability, they ignore other statutory provisions that only require that a grand jury or other formal proceeding be reasonably foreseeable. In Trump’s case, it certainly was. And there was probably an ongoing grand jury investigation in the Eastern District of Virginia focused on Trump’s former national security adviser, Michael Flynn, at the time Trump discussed Flynn with Comey. Whether the president intended to influence a grand jury proceeding that he believed was foreseeable based on Flynn’s misstatements (or an existing grand jury investigation) can best be answered by the president himself. The same is true of the disputes the letter points to over what conclusions Trump drew about the likelihood of a proceeding based upon statements about Flynn by the acting attorney general, Sally Yates, and Flynn himself. Even if Trump doesn’t give complete and truthful answers, an interview will reveal much about what was on his mind.
The letter also attempts to explain away the president’s seeming admissions to NBC’s Lester Holt and, reportedly, to Russian officials visiting the Oval Office that firing Comey was intended to impede the Russia investigation. The lawyers seem to be saying that the president’s position is that he didn’t really mean what he said last year — which reinforces the arguments for a Trump interview or other testimony. It is difficult for any interviewee to persuade investigators to disregard the plain meaning of prior statements — but it is impossible if he does not even try.
The weakness of the president’s position is, finally, highlighted by his attorneys’ concluding attempt to discredit the investigation. That is done by making the extraordinary argument that his own Department of Justice and the FBI are corrupt. While many subjects of criminal investigations may harbor that view, the fact that the attorneys for our chief law enforcement officer — who oversees the executive branch, where the Justice Department and FBI reside — made that desperate claim in their letter is striking. The president is arguing that not only is he above the law but also above the facts. That audacious move is unbecoming for our nation’s chief law enforcement officer, and neither Mueller nor Congress should let him get away with it.