We learned more about the back-and-forth between President Trump’s legal team and Special Counsel Robert Mueller this past weekend. The New York Times published a long letter from Trump’s team to Mueller arguing that he should drop his request to interview the president.
The lengthy letter makes many factual and legal assertions, some of which are highly debatable. Yet, assuming that it accurately reflects the nature and scope of Mueller’s investigation, its two bottom-line claims have merit: The special counsel does not have a viable criminal case against the president, nor has he justified the extraordinary measure of seeking the president’s testimony.
The letter suggests that the special counsel’s inquiry into Trump’s conduct is focused on obstruction. Mueller was appointed on May 17, 2017, amid the uproar over two events: Trump’s May 9 firing of Comey, and Comey’s subsequent leak of a memo-to-self (published by the Times on May 16), which claimed that Trump had pressured him to drop any investigation of former national-security adviser Michael Flynn. The letter implies that these two events remain the gravamen of the special counsel’s obstruction probe. If that is so, there is no obstruction case.
Only illegal acts to influence an investigation can predicate a criminal charge of obstruction against a president. Investigation and prosecution are executive functions in our system. FBI investigations are conducted under the president’s power; unlike ordinary citizens, the chief executive has the authority to influence, impede, and even shut down investigations.
Consequently, a prosecutor may not charge obstruction based on the president’s exercise of his constitutional prerogatives. The president’s authority to remove executive officials, such as the FBI director, and to exercise prosecutorial discretion — an executive power — by weighing in on the merits of an investigation are incontestable. Put aside that the president disputes claims that he leaned on Comey to drop the Flynn investigation and dismissed Comey over the Russia investigation; his lawyers are right that such actions cannot form the basis for an obstruction indictment.
Trump’s lawyers may go too far in arguing that, as a matter of law, presidential actions cannot constitute obstruction because that would amount to a claim that the Constitution’s “chief law enforcement officer” could “obstruct himself.” Trump’s lawyers root this argument in “the President’s actions here” (emphasis added) — i.e., they appear to be referring to the legal actions Trump actually took, not to hypothetical lawless acts.
The president, in any event, is not above the law. Theoretically, if a president attempted to impede an investigation by illegal acts, that could predicate an obstruction charge. For example, Presidents Nixon and Clinton were properly investigated on obstruction allegations based on witness tampering and subornation of perjury. But those presidents were subjected to impeachment proceedings, the remedy our system contemplates for egregious executive misconduct.
Congress has the authority to impeach and remove a president based on abuses of executive power and based even on constitutionally permissible actions — e.g., a pardon issued to silence a witness. Mueller is not Congress, nor does he work for Congress. He is a prosecutor, whose burden is to prove statutory crimes. He is, moreover, a subordinate executive official; if the president’s actions are constitutionally legitimate, it is not his place to question whether they are tainted by untoward motives.
The president’s attorneys are also correct in asserting that no federal prosecutor should seek a president’s testimony, much less attempt to compel it by grand-jury subpoena, absent a demonstration “with specificity” that the information sought is “important” to proving a serious crime, and that it “is not practically available from another source.” (The lawyers here quote the D.C. Circuit Court’s 1997 Espy decision.) It is doubtful that Mueller can establish either condition.
Unless there is a smoking gun against the president that is lurking unseen even in the private jousting between Trump’s team and Mueller, the special prosecutor should be wrapping up the obstruction aspect of his probe.
Even if one believes Trump botched the firing of Comey (he did), and even if one is skeptical of Trump’s claim that the firing was unrelated to the Russia investigation (we suspect it had much to do with Comey’s refusal to state publicly his private assurances that Trump was not suspected of wrongdoing), Trump’s removal of Comey was still legitimate, and, as we have opined, justified. Moreover, even if one believes (as we do) that presidents should refrain from involvement in ongoing investigations, especially involving political allies such as Flynn, the president’s authority to assert himself is clear — indeed, Trump could legitimately have ordered the Flynn investigation to be dropped, or pardoned Flynn.
And as a practical matter, there was no obstruction. Comey’s removal did not impede the Russia investigation in the slightest. Regarding the Flynn probe specifically, Comey never reported to the Justice Department that he had been obstructed, and Flynn was ultimately prosecuted and convicted.
Regardless, Mueller can’t legitimately claim that the information he wants from Trump is unavailable from any other source. He has collected voluminous documentary evidence and extensively questioned other participants in Comey’s termination and Flynn’s investigation. The prosecutor does not need the president’s testimony to prove what happened. Nor does he need it to establish Trump’s state of mind. Unless Trump committed an illegal act, his intentions are irrelevant; and even if they were arguably relevant, it is commonplace for prosecutors to prove mens rea without testimony from the subjects under investigation.
In short, unless there is a smoking gun against the president that is lurking unseen even in the private jousting between Trump’s team and Mueller, the special prosecutor should be wrapping up the obstruction aspect of his probe rather than extending it via a court fight over the president’s testimony.
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