WASHINGTON – President Trump and his lawyers seem ready to wage legal war on special counsel Robert Mueller if they deem it necessary, asserting immense executive powers that could essentially make the president immune from investigation.
In a January memo to Mueller that was made public, Trump’s lawyers made sweeping claims that suggested Mueller’s investigation might be improper and could be terminated by the president at any time.
Challenging a key facet of Mueller’s inquiry — whether Trump sought to obstruct justice and cripple the Russia investigation — the memo said a sitting president can’t obstruct justice because he is the nation’s top law enforcement officer, therefore couldn’t obstruct himself.
Trump attorney Rudy Giuliani said the legal team continues to cooperate with Mueller.
Critics said the memo claims powers that no president should have. “Again and again, in different ways, it makes the point that Trump is above the law,” said Norman Eisen, an ethics lawyer and senior fellow in governance studies with the Brookings Institution. “But no American is above the law, and he is going to find that out.”
In interviews Sunday, Giuliani questioned some of the memo’s assertions. “I probably would’ve organized it differently,” he told NBC’s Meet The Press but added that these legal questions are academic in nature and should not come into play in this case.
“We can win it on the facts,” Giuliani told NBC, saying Trump did not collude with the Russians during the 2016 election and did not obstruct justice. “We don’t have to get to the whole big constitutional argument, which will take a year to resolve.”
Analysts said the constitutional issues raised in the memo would probably have to be resolved by the Supreme Court, a confrontation that could be triggered by various actions, including:
► If Mueller subpoenas Trump for his testimony in the Russia case.
► If Mueller seeks to indict Trump over claims the president sought to obstruct justice in the investigation.
► If Trump tries to shut down the investigation, either by having Mueller dismissed or pardoning targets of the inquiry such as former associates Paul Manafort, Rick Gates and Michael Flynn — or even pardoning himself.
Questions about the legal status and rights of sitting presidents are as old as the institution itself. From the Thomas Jefferson administration’s treason prosecution of ex-vice president Aaron Burr to Watergate to the saga of Kenneth Starr and Bill Clinton, attorneys have disagreed about the relationships between presidents and the legal system.
Attorneys with a robust view of executive power have claimed that, constitutionally, sitting presidents cannot be indicted. The remedy for presidential wrongdoing, they said, is impeachment and trial by Congress, or indictment after a president leaves office.
These same attorneys apply the same logic to the question of whether a president can be subpoenaed, saying prosecutors lack the constitutional authority to compel any presidential appearance that would interfere with the chief executive’s duties.
Eisen, among others, disputed these claims, arguing that presidents can be subpoenaed and even indicted.
The subpoena question may be more pressing.
For months, Mueller and his attorneys have negotiated with the president’s lawyers about testimony from Trump. Giuliani, who argued for limits on time and the scope of questions for Trump, said Sunday that he would lean against having Trump testify.
Trump’s team said it supplied reams of documents to Mueller that answer his questions, rendering Trump’s testimony unnecessary.
Given the impasse, Giuliani and other presidential lawyers said Mueller may pursue a subpoena of Trump.
Mueller and his prosecutors are investigating whether there were links between Trump’s 2016 presidential campaign and suspected efforts by Russians to influence the race against Hillary Clinton.
Even some Trump backers balked at the memo’s statements about presidential pardon powers. “It’s an outrageous claim, it’s wrong,” Chris Christie, the former New Jersey governor and U.S. attorney, told ABC’s This Week.
Christie said Trump would never pardon himself because that would lead to impeachment. He said Mueller’s prosecutors haven’t proved they are entitled to “the extraordinary step of subpoenaing the president.”
Former U.S. attorney Preet Bharara, removed by Trump in early 2017, told CNN that the Trump legal memo “is overly expansive and overly broad.” He said the final decisions on these legal questions would not be made by either Trump or Mueller.
“It will be a court, or it will be Congress,” he said.
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