Yesterday I reported on some arguments advanced by Trump and his legal team that are being used to position Trump as above all law and possessing absolute dictatorial power. In essence, the argument goes, Trump cannot be subject to our laws because he is the law. He cannot be held accountable to the Department of Justice because he is justice. And then, when we thought it could not get worse:
… Trump attorney, Rudolph Giuliani, drove home the claim of sweeping presidential authority, telling HuffPost that Trump couldn’t be subpoenaed or indicted while in office even if he’d shot the former F.B.I. director James Comey.…
That quote and the one immediately below are from the NY Times report, Does the Law Apply to Donald Trump? by Michelle Goldberg.
Whatever Trump does, most Republicans will probably go along with it. In 500 days, Trump has managed to turn much of what remains of his party into an authoritarian cult. Among Republicans, he has an 87 percent approval rating; the only modern Republican president who was more popular with his own party at this point in his term was George W. Bush, and that was mere months after Sept. 11. A recent poll of voters in congressional swing districts found that 71 percent of Republicans “mostly like” Trump’s handling of F.B.I. and criminal justice officials.
Today I want to revisit some of what Michelle Goldberg wrote. My follow-up is motivated by the answer to her question, “His lawyers say no and Republicans don’t care.”
First of all, if Trump could not be prosecuted for shooting a federal official, then could he or anyone else in the administration be charged with murder if they were to start shooting Trump’s perceived political enemies? Remember also that it was Trump himself who said “I could stand in the middle of 5th Avenue and shoot somebody and I wouldn’t lose voters.”
Second, on average (Goldberg’s poll numbers above), about 80% of Republicans approve of Trump and “mostly like” his handling of law enforcement officials.
Now put the two together. Do those Republicans believe that Trump is above the law? Do they believe that our president should have absolute judicial powers previously held by the English king that sparked our revolution? Do they believe that the Justice Department is Trump’s personal political weapon? And do they believe that if Trump were to shoot and kill a federal official (or anyone else for that matter), that he should not be found guilty and punished for murder?
It seems to me that all this leads to a huge showdown over the powers of the president. But can this “constitutional crisis” be averted?
Steve Benen (MSNBC/MaddowBlog) considers that question in Trump’s lawyers try to position the president as above the law.
The first sign of trouble came in December. As the investigation into the Russia scandal intensified, and credible allegations that Donald Trump obstructed justice came into focus, one of the president’s attorneys argued on the record that Trump “cannot obstruct justice.”
A day later, the same lawyer, John Dowd, added that because the president is the nation’s “chief law enforcement officer,” it’s simply not possible for him to “obstruct himself.”
What we didn’t know until 48 hours ago was that this argument wasn’t simply floated via the media as part of some kind of public-relations campaign. The New York Times reported on a 20-page memo Trump’s lawyers sent in January to Special Counsel Robert Mueller, in which the president’s defense team adopted a stunning legal posture:
President Trump’s lawyers have for months quietly waged a campaign to keep the special counsel from trying to force him to answer questions in the investigation into whether he obstructed justice, asserting that he cannot be compelled to testify and arguing in a confidential letter that he could not possibly have committed obstruction because he has unfettered authority over all federal investigations.
In a brash assertion of presidential power, the 20-page letter – sent to the special counsel, Robert S. Mueller III, and obtained by The New York Times – contends that the president cannot illegally obstruct any aspect of the investigation into Russia’s election meddling because the Constitution empowers him to, “if he wished, terminate the inquiry, or even exercise his power to pardon.”
Americans have probably never seen a memo quite like this one. In it, Trump’s lawyers make the case that he not only can’t obstruct justice, but also that he can’t be subpoenaed. In their vision, the president is effectively above the law, capable of dictating the terms, scope, and duration of any federal investigation, for any reason and at any time.
In Trump World’s vision, the legal system is the president’s system. Mueller may be leading an investigation, but it’s actually Trump’s investigation.
More than two centuries after Louis XIV is rumored to have said, “L’Etat, c’est moi” (“I am the state”), an American president’s lawyers articulated a similar principle, in writing, for a special counsel who considers that president to be a subject of an ongoing criminal investigation.
A constitutional crisis?
I’ve seen some suggestions that this constitutes a constitutional crisis of sorts, since the idea that our laws are somehow subservient to Trump’s power and wishes is fundamentally at odds with the American system of government.
But in practical terms, it’s only a crisis if the argument works. Presidents and their lawyers can make all kinds of audacious claims; what matters is what they manage to get away with.
And in this case, Trump and his team expect to get away with the idea that a sitting president cannot commit a crime – Rudy Giuliani said yesterday Trump could’ve literally shot James Comey and he still couldn’t face prosecution while in office – because our chief executive is immune from punishment under the system he leads.
To prevent a crisis, such an argument must be forcefully rejected.
As the fallout of Saturday’s report continues, consider a few additional angles:
The idea that it’s an institutional impossibility for a president to obstruct justice is belied by the fact that Nixon and Clinton both faced articles of impeachment on this exact point.
Giuliani argued yesterday that Trump could “probably” pardon himself, though he doesn’t expect that to happen. [Update: Trump tweeted this morning that he has an “absolute right” to pardon himself, though he added, “But why would I do that when I have done nothing wrong?”]
The argument in the newly released memo helps shed light on a variety of other Trump controversies. If a president’s Article II powers are so expansive that he or she can dictate the terms of federal law enforcement, he or she can also dictate how every other part of the government operates. Pressuring the Postmaster General, for example, to punish a perceived White House enemy, is perfectly permissible under this model.
There are suddenly new reasons to be concerned about the competency of the president’s legal team: the memo’s footnotes were a mess, and at one point, Trump’s lawyers pointed to the wrong obstruction-of-justice statute.
The memo suggests a Trump-Mueller interview is unlikely. “The president’s prime function as the chief executive ought not be hampered by requests for interview,” it states. “Having him testify demeans the office of the president before the world.”
Putting aside the irony of Trump’s lawyers expressing concern about demeaning the office of the presidency, it’s likely that Mueller would find this posture unsatisfactory. If so, the special counsel could subpoena the president, but again, the memo also suggests that as far as Trump’s defense team is concerned, it’s within his authority to simply ignore the subpoena.
Writing in the Washington Post, Ruth Marcus counsels getting on with it, saying Mueller has waited long enough. It’s subpoena time.
So as push comes pretty close to shove, Mueller faces a choice. He could decide that a subpoena, and the ensuing litigation with Trump, wouldn’t be worth the cost in disruption and delay. Team Trump’s bravado notwithstanding, Mueller would be likely to win any constitutional showdown over his authority to enforce a subpoena of the president.
“It’s pretty clear that a president can’t be subpoenaed to a criminal proceeding about him,” Giuliani told Sean Hannity last month. Really? Ask Richard Nixon, and the justices who ruled unanimously that he had to turn over the tapes. Ask Clinton, and the justices who ruled unanimously that he had to testify in Paula Jones’s civil lawsuit. The law is not absolutely clear, but it is overwhelmingly on Mueller’s side, if he chooses to press a subpoena.
But sorting that out could take months, if not longer, and a special counsel faces time pressures different from those confronted by an ordinary prosecutor. And to what end? If the subpoena is eventually upheld, Trump could assert his right against self-incrimination to avoid testifying, especially as to the matters of most intense interest to Mueller. Department practice is not to subpoena targets of an investigation, but Mueller has reportedly told Trump he is not a target. And even if Trump were to testify, how much valuable information could prosecutors really extract from him?
On the other side of the ledger, tough prosecutors don’t make it a habit to back down in the face of recalcitrant witnesses; Mueller is nothing if not a tough prosecutor, unlikely to simply say “never mind” after months of seeking Trump’s testimony. And as much as Mueller has an interest in both pursuing and concluding the Russia probe, he also has an obligation to history and to be mindful of the precedents that are being set.
Backing down in the face of presidential recalcitrance would not only reward Trump but also tell future presidents that they can evade the ordinary demands of the law as long as they have the stomach to bully and delay. Mueller shouldn’t let that happen. He has waited long enough.
One thing Mueller did is really pretty cagey. He issued 13 indictments of Russians. Rachel Maddow reported that the Trump pardon strategy would have to include Russians to end probe.
Rachel Maddow explains why if Donald Trump wanted to pardon his way out of the Mueller investigation by pardoning all of his family, friends, and colleagues, the Russian indictments would still keep everyone on the hook, so Trump would have to pardon the Russians too. Jun.04.2018
Certainly that would have to wake the Republicans in Congress, ya think?