This weekend, the New York Times published a January 2018 letter drafted by the Trump legal team and sent to Robert Mueller in an attempt to preempt any subpoena that Mueller might have been planning to send Trump’s way. Kudos to John Dowd and Jay Sekulow (Trump’s lawyers at the time) for their efforts, but it might’ve impressed the special counsel a bit more if they’d actually done their research.
For starters, they argued about the wrong obstruction statute. No, I’m not kidding. Here’s what the letter said:
“… § 1505 of Title 18, United States Code…forbids anyone from corruptly, or by threats of force or by any threatening communication, influencing, obstructing, or impeding any pending proceeding before a department or agency of the United States, or Congress…No court has ever held than an FBI investigation constitutes a § 1505 proceeding… As a matter of law, then, the FBI’s investigation of Lt. Gen. Flynn was not, at the time of the President’s comments as recalled by Mr. Comey, within the scope of § 1505.”
Okay, got it. The statute only forbids interference with “pending proceedings” and an FBI investigation isn’t a “pending proceeding.” That would be a fantastic legal argument, but for one little problem. 18 USC §1505 is only one of several obstruction statutes that are potentially applicable to Trump’s alleged behavior. There’s also 18 USC §1512, which was enacted in 2002; it criminalizes corrupt interference with investigations even before proceedings have actually begun — widening the scope of liability, and making Trump’s argument about “pending proceedings” moot.
Although many legal experts agree that 18 USC §1512 is the one in play, there is some disagreement (including at the judicial level) about whether any of the applicable obstruction statutes criminalize interference with FBI investigations in particular. The matter would likely constitute a novel legal matter with respect to Trump/Russia/Comey/Flynn. Even so, the the January letter made no mention whatsoever of 18 USC§ 1512, which is beyond stupid. Failure to even mention an obviously relevant statute in a 20-page dissertation on innocence would get any law student a D on a final exam; I’m guessing Mueller had a little chuckle over the glaring error.
The rest of the 20-page “President Trump couldn’t possibly have done anything wrong” manifesto included a few other ridiculous arguments too. Here are a few of our favorites:
They argued that the president is above the law, just because he’s the president.
“[T]he President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself…”
This is the theme of the letter, in a nutshell. President Trump could not ever be guilty of obstructing justice, because as president, he already has the power to shut down any DOJ investigation. By this reasoning, a police chief under investigation for committing murder would be within his rights to evade the law at all costs by virtue of his authority over police investigations generally. That logic wouldn’t work in the movies, and it doesn’t work in our government.
Granted, the concept of a sitting president’s liability for obstructing justice by thwarting an investigation into his own actions hasn’t been tested at length, but it’s a bit premature to assume what would happen in such a case. Ultimately, the question of how executive authority intersects with obstruction laws is one to be answered by the courts. Those courts might focus on timing (for example, finding that the president does have the power to shut down an investigation, but that unless and until he does so, he must allow it to proceed unobstructed), or might simply define limits of the president’s executive power (and rule that even a president cannot interfere with an investigation for which he is the subject). A court might apply an entirely different analysis; either way, though, the outcome is far from certain. Robert Mueller (and anyone else even mildly familiar with federal criminal law) knows this, and likely had a good eye-roll session over this aspect of the letter back in January.
They couldn’t resist discussing James Comey’s thoughts.
“While Mr. Comey may or may not have misunderstood, misinterpreted or misremembered the President’s alleged comments, the “hard” evidence already voluntarily provided to your office shows not only that the President most certainly did not obstruct justice, but that at the time, Mr. Comey certainly did not believe that he had in any way obstructed justice. If Mr. Comey had believed otherwise, he would have opened an obstruction investigation and directed his investigators accordingly. He did not do so.”
While litigating criminal cases, it’s not unusual for counsel to advance arguments in the alternative. Many a skilled defense lawyer will put forth some version of, “X didn’t happen, but even if it did…” In court, that works. In a letter purporting to clear up facts to convince a prosecutor not to prosecute, though, it doesn’t. Either the Trump/Comey Flynn’s-a-good-guy conversation happened, or it didn’t. Given that the alleged conversation was private, it would have been far more strategic for Trump’s lawyers to simply deny that it ever occurred – the way Trump himself has done. Clouding the defense narrative with claims of misinterpretation is unnecessarily giving up ground.
Furthermore, Comey’s belief isn’t relevant. Trump’s intent is what matters, and Mueller knows this. Intent can be difficult to prove – and that’s an issue any prosecutor would need to navigate; however, arguing that Trump didn’t obstruct justice because Comey didn’t think he did at the time is just silly.
Also, declaring what James Comey thought is a rookie move generally. Any lawyer familiar with the rules of evidence (which, by the way, should be all of them) knows that one person cannot testify about what another person thought. Obviously, the January letter isn’t sworn testimony, but the underlying logic still applies. John Dowd and Jay Sekulow aren’t qualified to give credible accounts of what James Comey thought. Their attempt to do so is presumptuous and implausible. That kind of arrogance doesn’t usually play well with seasoned prosecutors, and it probably annoyed Mueller.
They totally mischaracterized history.
“No President has ever faced charges of obstruction merely for exercising his constitutional authority.”
That’s technically true, but let’s not stop there. The fact is that no president has ever faced criminal charges at all. However, the question of whether a sitting president is immune from criminal prosecution isn’t a settled legal matter, and its absurd to act otherwise.
Just for a little corrupt-presidential history, let’s take a look at Watergate. During the scandal, the issue of presidential immunity was fully briefed and argued before the Supreme Court. However, the Court never ruled on presidential immunity, and decided the case on other grounds. In fact, at the time, James D. St. Clair, Richard Nixon’s counsel, wrote in his brief, “It has never been seriously disputed by legal scholars, jurists, or constitutional authorities that a President may not be indicted while he is an incumbent.” St. Clair was right – it has never been seriously disputed, litigated, or ruled upon. In 1997, SCOTUS did rule upon presidential immunity with regard to civil lawsuits – and guess what? It ruled that the president wasn’t above the law.
Donald Trump’s political brand is entrenched in the concept that his every breath is unprecedented. That whole, “it’s never happened before, so it can’t happen to me,” thing looks worse on Trump than it would have on Nixon. It’s doubtful that this argument was perceived as credible by Mueller, so they probably should have just left it out.
The January letter wasn’t the first – and certainly won’t be the last – round of inane arguments coming from Team Trump. As the lawyers come and go, perhaps the arguments will become more legally-sound. Or perhaps not.
Editor’s Note: This story has been updated from its original version to include additional legal analysis.
This is an opinion piece. The views expressed in this article are those of just the author.