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Trump’s lawyer’s very bad and contradictory Sunday, annotated

Jay Sekulow, a member of President Trump’s legal team, repeatedly says that Trump isn’t under investigation by the special counsel. (Video: Bastien Inzaurralde/The Washington Post)

President Trump's lawyer Jay Sekulow took to the Sunday shows this weekend with a pretty simple talking point: Trump is not under investigation. The problem is that, because of Trump's own actions — most notably when he tweeted “I am being investigated” — it was pretty easy to poke holes in Sekulow's defense.

And by the end, there were indeed holes. Sekulow struggled to square his version of events with Trump's comments, including arguing that Trump relied on the Justice Department's recommendations to fire FBI Director James B. Comey (Trump says those didn't matter) and even suggesting that an attorney-client privilege existed between Trump and Comey (who was not, in fact, Trump's lawyer). And when all was said and done, despite saying repeatedly that Trump is not under investigation, Sekulow acknowledged that he doesn't really know that for sure. (Oops.)

It was a tough day for a man with an impossible job. If White House press secretary Sean Spicer has the worst job in Washington, Sekulow might have the second-worst. And it showed on Sunday.

Below are four exchanges that really drive home just how much of a hole Trump has dug for his legal team. For each one, I annotate the key parts. To see an annotation, click on the yellow, highlighted text.

1) Fox News Sunday (Part 1)

CHRIS WALLACE: I want to ask you a direct question: Does the president think that [Deputy Attorney General] Rod Rosenstein has done anything wrong?
SEKULOW: The president has never said anything about Rod Rosenstein doing anything wrong. Here's what — what is the legal situation here. There is a constitutional issue when you have this scenario. The president made a determination based on consult of advice. He decided ultimately. He’s the commander in chief. He gets to make that decision that James Comey had a go. That was coming, by the way, from groups right, left and center over the last year. You — you and I know that. So there had been concern about James Comey.
It was put forward in a memorandum — that's what the president's referencing — from the deputy attorney general and the attorney general requesting the removal of James Comey as the FBI director. And, ultimately, that's the president's determination.
So here's the constitutional threshold question, Chris. The president takes action based on numerous events, including recommendations from his attorney general and the deputy attorney general’s office. He takes the action that they also, by the way, recommended. And now he's being investigated by the Department of Justice because the special counsel under the special counsel relations reports still to the Department of Justice. Not an independent counsel. So he's being investigated for taking the action that the attorney general and deputy attorney general recommended him to take by the agency who recommended the termination. So that's the constitutional threshold question here. That’s why, as I said, no investigation —
WALLACE: Well, I — what — what — what's the question [inaudible]. I mean you — you stated — you stated some facts. First of all, you’ve now said that he is getting investigated after saying that you didn’t.
WALLACE: You — you just, sir, that he’s being —
SEKULOW: No, he's not being investigated!
WALLACE: You just said that he’s being investigated.
SEKULOW: No, Chris, I said that the — any — let me be crystal clear so you — you completely understand. We have not received nor are we aware of any investigation of the president of the United States, period.
WALLACE: Sir, you just said two times that he's being investigated.
SEKULOW: No. The context of the tweet, I just gave you the legal theory, Chris, of how the Constitution works. If, in fact, it was correct that the president was being investigated, he would be investigating for taking action that an agency told him to take. So that is protected under the Constitution as his article one power. That's all I said. So I appreciate you trying to rephrase it, but I’m just being really direct with you, Chris. This is — let me be —
WALLACE: No, I — I — sir, I didn't rephrase it. The tape will speak — Jay, the tape will speak for itself. You said he is being investigated. And it’s not that big —
SEKULOW: Chris, he is — just — no, Chris — that’s [inaudible] unfair, Chris.
WALLACE: Wait a minute — wait a minute. Jay, and it’s not — Jay, it's not just being investigated for firing Comey. There's also the question of what he said to Comey when Comey was still the FBI director. So there's more than just the fact that he fired Comey.
SEKULOW: He — Chris, let me be clear, you asked me a question about what the president's tweet was regarding the deputy attorney general of the United States. That's what you asked me. And I responded to what that legal theory would be. So I do not appreciate you putting words in my mouth when I've been crystal clear that the president is not and has not been under investigation. I don't think I can be any clearer than that.
WALLACE: Well, you don't know that he's not under investigation again, sir. I mean you might —
SEKULOW: You know, I can't read the mind — you’re right, Chris, I can’t read the minds of the special prosecutor.
WALLACE: Well, then, good, okay, so we’re in agreement, you don't know whether he’s under — you don’t know whether he’s under investigation.
SEKULOW: But I have not been notified. No one has been notified that he is.
WALLACE: You don’t know whether he’s under investigation or not.

2) Fox News Sunday (Part 2)

WALLACE: Does he think that [special prosecutor] Robert Mueller has done anything wrong?
SEKULOW: First of all, he has not said anything about Robert Mueller. And, Chris, let me say something here. You’re asking me if I had a conversation, which I have not had, about Robert Mueller with the president of the United States on — or anyone else for that matter. I can't discuss that and would that with you. Unlike James Comey, who leaks information to the press, I actually respect the attorney-client privilege. Apparently he did not.
WALLACE: Does the president believe — well, you’re speaking for his legal team, so you’re out here to represent him and tell us what the president’s belief is, is that correct?
SEKULOW: No, I'm out here to tell you what the facts are and the legal issues are. I'm not to tell you what the beliefs are. I'm not the client’s conscience, I’m his lawyer.
WALLACE: I understand that and the — and the client — have you spoken the — have you spoken to the president at all?
SEKULOW: Yes, but I'm not going to discuss those conversations with you. Those are privileged under the attorney-client privilege.
WALLACE: Well, I assume that if he asked you to say something, for instance, all kinds of things about — after Comey's testimony. I assumed he was speaking for the president.
SEKULOW: Marc Kasowitz made a general statement to the press after the testimony of James Comey. That's what that was about. This — you’re asking me now questions about what people are thinking in their minds, which I don't read minds, and you’re asking me also what I may or may not have had a conversation with the president about and you understand this. I respect the attorney-client privilege, unlike James Comey.
SEKULOW: I want to be real clear on that, too. I'm not going to give you conversations I've had with — have or have not had with the president of the United States. So when I’ve had conversations with the president of the United States —
WALLACE: Well, I — your —
SEKULOW: As his lawyer, it's privileged, period.

3) Face the Nation

SEKULOW: The response there is clear, and I want be really clear about this: The president is not and has not been under investigation.
JOHN DICKERSON: How do you know?
SEKULOW: Because we’ve received no notice of investigation. There has been no notification from the special counsel’s office that the president is under investigation. In fact, to the contrary. What we know is what James Comey said, the last thing we know is when he testified just a couple weeks back: that the president was not and is not a target of investigation.
DICKERSON: Of course, there have been events since James Comey told them that. But is it your view and just to educate viewers that — that if you were under investigation, there would be an obligation for the special counsel to let you know. Couldn’t you be under investigation and they’re just not letting you know yet?
SEKULOW: Well, look, I — I can’t imagine a scenario where the president would not be aware of it. Number one, there is a serious constitutional issue here. I mean I want you to think about the context upon which this would take place. Under The Washington Post theory of the case, this is The Washington Post theory, that the president of the United States, after being advised by his attorney general and the office of the deputy attorney general, determined to remove James Comey from the FBI directorship. If The Washington Post leaks were correct, the president of the United States, would be, if this was correct, would be under investigation for taking the action that the Department of Justice asked him to take. That raises not only a serious — not even a serious constitutional question, it’s an easy constitutional question. That’s impossible. The president cannot be investigated, or certainly can not be found liable, for engaging in a activity he clearly has power to do under the Constitution.
DICKERSON: Powers to fire the FBI director and let me ask you this question —
SEKULOW: James Comey acknowledged that by the way, John. James Comey said he served at the pleasure of the president.

4) Meet the Press

SEKULOW: The president is not under investigation by the special counsel. The tweet from the president was in response to the five anonymous sources that were purportedly leaking information to The Washington Post about a potential investigation of the president. But the president, as James Comey said in his testimony and as we know as of today, the president has not been and is not under investigation.
CHUCK TODD: Well, I go back to the tweet. Then why did he say he was? I mean, was this just mistweeted? Are we not to take him at his word?
SEKULOW: No. The president's tweet was in response to the Washington Post story. So The Washington Post issued a story that had five anonymous sources, which they never identified what agencies those sources originated out of. The response from the president, using social media, was about that story. But let me be very clear here, as it has been since the beginning, the president is not and has not been under investigation for obstruction.
TODD: Okay, then why is the president confused? Is this just that he thinks the media is correct here or not? I'm confused by this. Why is he not taking your legal advice or other legal advice saying, “Mr. President, you're not under investigation. So why tweet this?” This is why there's confusion.
SEKULOW: Chuck, I think you're reading more to the tweet than what's there. The president sent out that tweet directly in response to the Washington Post story, with the five anonymous, unnamed sources from unnamed agencies. So that's why he put that in the tweet. So look, the president has been, as you know, very effective in utilizing social media. But I want to be very clear here and very direct. The president has not been and is not under investigation. And the tweet was in response to the Washington Post story with no named sources whatsoever. In fact, as you know, Chuck, no named agencies whatsoever.
TODD: Let me go to something else in that tweet. He said, “By the man who told me to fire the FBI director.” I assume that is a reference to the Deputy Attorney General Rod Rosenstein. The president himself said he was going to fire the FBI director regardless of whatever the deputy attorney general or the attorney general said. So I'm confused there. Who made the recommendation to fire James Comey? Was it the president's decision or was it the recommendation of the deputy attorney general?
SEKULOW: Well, first of all, the president ultimately makes the decision. That's what he is as president of the United States. There's a collaborative and discussion, a very thorough process. I'm holding in my hand the letter that was sent from the attorney general of the United States with the memorandum from the deputy attorney general of the United States regarding the situation involving former FBI director Comey. And in that recommendation is a recommendation for removal. Now as you know, presidents have the ability to think about these situations not in a vacuum. There's a process. When he met with his attorney general, when he met with his deputy attorney general, and reviewed their recommendations of what they thought the appropriate course of action should be, both were convinced, with as I said, a long and very persuasive document, that James Comey should be removed. But here is the irony. And Chuck, I think this is really important. If the leaks were correct about this investigation, again, those are leaks, they're not substantiated, and we have no knowledge of an investigation. But if those leaks were correct, here's what the legal theory of this case would have to be. And this would raise a serious constitutional issue right out of the beginning. You would have had the president of the United States reviewing a letter and recommendations from his department head. And that would be the attorney general of the United States, as well as others. I'm sure he had consultation with other people, and that's the nature of these issues. And he made a determination based on that consultation and based on this liberative process to terminate the FBI director, as they recommended.
TODD: But, Mr. Sekulow, that is not what the president said to Lester Holt. The president said to Lester Holt that he had already made the decision to fire James Comey. So I'm confused here. You just said he asked for this consultation. Which, by the way, let me also say here, Mr. Rosenstein, in his prepared statement, in his testimony to Congress last month, said, “My memorandum is not a statement of reasons to justify a fore cause termination.” So I am confused by your rationale here.
SEKULOW: Well, let me just say two things. Number one, the letter to the president of the United States from the attorney general of the United States says, “Therefore, I must recommend that you remove Director James Comey and identify and experience a qualified individual to lead the great men and women of the FBI.” That's pretty unqualified. And attached to that is a memorandum from, in this case, the deputy attorney general's office, when he lays out the reason of his concern and recommendation of removal was because of the handling of the Hillary Clinton matter. But let's take a look at what you just said. Here's what you just said. The president made the decision before. Let's assume for the sake of argument there was all kinds of being discussions being discussed. But this crystallized that decision. But the fact of the matter is the president, under the constitution, has the authority to make that decision. Now he has these two memorandums from his attorney general and high his deputy attorney general. So here's the theory of this purported case from The Washington Post. I mean, just think about this for a minute. So the president of the United States takes action to remove the FBI director, and he has a recommendation from his attorney general and deputy attorney general to take that action. He's now, according to The Washington Post, being investigated by the same department who told him to take that action. That's not constitutional. That's not the way the constitution works either.
TODD: But the question is going to be though, what was the reason behind the firing. So let me ask you this: Was the reason having to do with his handling of the Russia investigation, or was it having to do with his handling of the Clinton email investigation? The reason I ask you this is the memo that was written, the rationale by the deputy attorney general, did not discuss Russia. The president, in his interview with my colleague Lester Holt, said it was about Russia. Which is it?
SEKULOW: Well, the memorandum from the attorney general, you're right, it's about the Hillary Clinton matter, which was basis enough upon which he could be terminated. And was in fact terminated. So that's what the document says. But you've raised an interesting point on the Lester Holt interview. Do you know when the president gave that full interview to Lester Holt, he said to Lester Holt from NBC News, your colleague, he said that in light of all of this, the removal of James Comey, in fact he knew it, was going to lengthen the amount of time this investigation would take, but he thought it was in the best interest of the American people. So he was fully aware that if, in fact, he took this action, he would see a lengthening or could see a lengthening of the process. So you cannot view this, in my mind, Chuck, or in any reasonable person's mind, especially someone that's representing the president of the United States, these things in a vacuum. There's multiple factors that come into exist. But let me tell you the factor that came into exist here. The president made the determination to remove the director of the FBI after consultation with others. And that determination is protected by the Constitution.