President Donald Trump’s legal team told investigators the president cannot illegally obstruct justice in the Russian probe because he has the authority to end the investigation, The New York Times reported Saturday.
Trump’s legal team sent a 20-page letter to Special Counsel Robert Mueller in January contending the president cannot illegally obstruct the probe into Russian election meddling because the Constitution empowers him to “terminate the inquiry, or even exercise his power to pardon.”
The president and his team of lawyers, led by former Republican New York City Mayor Rudy Giuliani, are trying to keep Trump from being asked to answer questions about the probe in front of a grand jury. They fear Trump could expose himself to accusations of lying to the investigators. Legal analysts argue the team’s approach is novel and has never been tried by previous administrations.
“We don’t know what the law is on the intersection between the obstruction statutes and the president exercising his constitutional power to supervise an investigation in the Justice Department,” Jack Goldsmith, a Harvard Law School professor, told TheNYT in an interview. “It’s an open question.”
Mueller has intimated in the past that he wants to interview Trump to determine if he had criminal intent to obstruct the investigation into his associates’ possible links to Russia’s election meddling. Mueller will have to decide whether to press ahead with a historic grand jury subpoena if Trump’s team denies him access to the president.
The memo claims Trump’s position as the head of the government makes it difficult for him to prepare and sit for an interview. Mueller must therefore prove the president is the only person who can provide information investigators seek, according to the memo, which was authored by John Dowd and Jay Sekulow, both of whom acted as Trump’s lawyers at the time.
“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.” Subpoenas of the president are extraordinarily rare.
Former President Bill Clinton was ordered to testify before a grand jury in 1998 after requests for a voluntary appearance in front of independent counsel, Kenneth Starr. Clinton eventually agreed to answer questions on the stipulation they be asked inside the White House rather than a court house.
Trump’s team meanwhile maintains the president’s actions regarding the probe have been constitutional.
“Every action that the president took was taken with full constitutional authority pursuant to Article II of the United States Constitution,” they wrote of the section of the Constitution laying out the executive branch’s duties. “As such, these actions cannot constitute obstruction, whether viewed separately or even as a totality.”
Mueller has submitted a list of 48 questions to Trump’s legal team he hopes to have answered in a prospective interview as part of the investigation into possible obstruction of justice and campaign collusion with Russia. TheNYT obtained the list of questions, which are mostly related to a potential obstruction of justice case against Trump.
Five questions relate to Michael Flynn, the former national security adviser who was forced to resign on Feb. 13, 2017. Eighteen questions focus on James Comey, who Trump fired as FBI director on May 9, 2017. Eight questions center on Attorney General Jeff Sessions and 13 regard possible coordination between the Trump campaign and Russian government. (RELATED: Here Are The Questions Robert Mueller Wants To Ask Trump)
In the 20-page memo, Trump’s lawyers also attempted to clarify the president’s assertion in an interview two days after firing Comey that he was thinking “this Russia thing” had no validity. Mueller seized upon that statement as possible evidence of obstruction, sources familiar with the investigation told TheNYT. (RELATED: Donald Trump Has Fired FBI Director James Comey)
Trump’s legal team said the entire interview, which took place May 11, 2017 on NBC, makes clear “he was willing, even expecting, to let the investigation take more time, though he thinks it is ridiculous, because he believes that the American people deserve to have a competent leader of the F.B.I.”
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