Michael Schmidt and colleagues at the NY Times reports that Trump’s Lawyers, in Confidential Memo, Argue to Head Off a Historic Subpoena. Your Scriber thinks the basis of their argument is that the King cannot be guilty of anything because the King has total control over the dispensing of justice, even to himself.
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.”
As far as I know, “unfettered authority” is a novel claim about Trump’s authority (but I must defer on the matter of novelty to those who know more about the law). Regardless, the claim boils down to this: Trump cannot commit obstruction of justice because Trump is justice.
What Trump’s lawyers then did was to make arguments about preserving and protecting the office of the president. For example:
“Ensuring that the office remains sacred and above the fray of shifting political winds and gamesmanship is of critical importance,” [Trump’s lawyers] wrote.
“The president’s prime function as the chief executive ought not be hampered by requests for interview,” they wrote. “Having him testify demeans the office of the president before the world.”
This is the ultimate irony. Trump lawyers’ arguments address the sanctity of the office of the president. But they “fear that if he answers questions, either voluntarily or in front of a grand jury, he risks exposing himself to accusations of lying to investigators, a potential crime or impeachable offense.”
Their fears are justified. The whole issue arises because Trump is a pathological liar and those same lawyers know it. If Trump goes on the stand and behaves as he does 6.5 times per day, he will be open to chargers of perjury and, House of Representatives take note, that is an impeachable offence.
Even if Trump v. Mueller gets to court, slate.com notes that it might not turn out well for Trump. Trump’s Lawyers Cite Outdated Statute in Long Letter to Mueller Rejecting Interview Request
… any battle in the courts may not turn out so well for Trump’s attorneys considering their understanding of obstruction of justice law seems to, at the very least, be outdated. In one portion of the letter, the president’s lawyers say investigators are looking into Trump asking then FBI chief James Comey to end the investigation into his former national security adviser Michael Flynn. According to Trump’s lawyers, that couldn’t have possibly been obstruction because Trump didn’t know Flynn was under investigation. But the attorneys cite an outdated statute to make that claim, failing to mention that a broader 2002 law makes it a crime to obstruct an investigation even before it officially starts. “The president’s lawyers do not mention this statute, whose existence appears to render several of their arguments beside the point,” notes the Times.