DANIEL VAUGHAN: On the fake controversy behind the memo from Trump’s lawyers

June 4, 2018

The outrage invoked over a leaked memo from the president’s legal team is simply unnecessary.

To begin with, the memo reveals no new legal arguments. Any lawyer — myself included — has known about these for several months now.

In fact, all the memo does is confirm that Robert Mueller’s probe is getting restricted in scope by Donald Trump’s lawyers — and there’s strong legal precedent on Trump’s side.

Most coverage of the memo starts and stops on page three, where the president’s lawyers argue that as the chief law enforcement officer, Trump cannot be charged or indicted for obstruction when he exercises the constitutional powers of the executive branch.

Contrary to most scare headlines, this isn’t a controversial claim, and the meltdown on liberal news sites is both predictable and inaccurate.

Here’s what you need to know: the special counsel and Trump’s lawyers are and have been engaged in high-level negotiations over forcing the president to grant an interview to Mueller for several months now. As part of those negotiations, Mueller’s team identified 16 different topics they wanted the president to explain.

Trump’s lawyers are trying to limit the scope of these questions as much as possible — and of course, all of this is absolutely typical in investigations of this nature.

As regular readers of this column on the Conservative Institute know, Mueller’s team can’t indict a sitting president under Justice Department rules. Since indictment is off the table, the most likely path for Mueller is using an interview to trick Trump into committing perjury — on any topic — and then submitting that perjury evidence before Congress for impeachment proceedings.

Late-night pundits jokingly refer to the interview as a “perjury trap” for Trump. But it’s not a joke; there’s a long and rich history of case law where the courts have been forced to reign in police and prosecutors from using harsh, coercive, and illegal interrogation techniques.

The Fifth Amendment right to remain silent and to an attorney exists, in part, to protect innocent civilians who break down under police interview and interrogation tactics (see the Innocence Project for examples).

Perjury has already proven to be a favorite option of Mueller. Trump’s team, realizing this, knows an interview is a dangerous proposition.

Based on the arguments made by the two parties, it seems Mueller’s case is centering on obstruction of justice as it pertains to Trump’s choice to fire former FBI Director James Comey and former National Security Advisor Michael Flynn.

If this obstruction of justice does exist, that, by implication, raises the specter of collusion.

And since Mueller can’t indict, he would submit this evidence to Congress in a final report as evidence to support impeachment proceedings.

The heart of this affair is whether or not the president, when using his constitutional powers, can commit obstruction of justice. Assuming, for the sake of argument, that Trump explicitly fired Comey as a means toward ending the Russian collusion case, would that constitute obstruction?

Legally, that’s not clear, as the memo lays out:

As you know, and as Mr. Comey himself has acknowledged, a President can fire an FBI Director at any time and for any reason. To the extent that such an action has an impact on any investigation pending before the FBI, that impact is simply an effect of the President’s lawful exercise of his constitutional power and cannot constitute obstruction of justice here. No President has ever faced charges of obstruction merely for exercising his constitutional authority.

On this point, the memo is right. Under the president’s Article II powers in the Constitution, he has the exclusive power to remove executive agency heads and replace them. All executive branch agencies are presumed to fall under the directional power of the Executive Branch.

The memo is also right to say the president can remove any person from these positions for any or no reason at all.

In other words, it is legally impossible for the president to violate the law when he’s using a power that gives him broad authority. It’s not that the president is above the law — it’s that the law gives the Executive Branch broad authority.

If Congress or “the People” believe the president is abusing this power, they can remove the president for such abuse through impeachment. Which means the question of whether or not the president has abused his power isn’t a legal one; it’s a political one that only the impeachment process can address.

This same power comes into play with regard to the president’s power to arbitrarily end an investigation at the FBI or Justice Department, as the memo states:

A President can also order the termination of an investigation by the Justice Department or FBI at any time and for any reason. Such an action obviously has an impact on the investigation, but that is simply an effect of the President’s lawful exercise of his constitutional power and cannot constitute obstruction of justice.

Again, this is not about a president being above the law, as critics are arguing — it’s about the use of executive power. In overseeing the executive branch, the president has near plenary power over his subordinates.

And courts and prosecutors don’t have a say in how that power gets used, nor can people sue to get their jobs back and force the president to give them a position (a concept that goes back to the seminal case of Marbury vs. Madison in 1803).

Mueller’s team was tasked with finding some amount of criminality in the Russian collusion case. What the memo reveals is that they have little evidence on that front on Trump, and are instead trying to lay the groundwork for impeachment proceedings in the House through perjury and obstruction.

Mueller may find criminality with others in Trump’s circle, but it’s legally impossible to argue that a constitutional power is illegal — that’s a political question for Congress, not prosecutors.

While the memo may be interesting for lawyers, it reveals nothing new about the president’s legal situation that hasn’t been known for months — which means this is just old outrage media getting repackaged for a new news cycle.


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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.