Government watchdogs and legal experts called collective ‘bullshit’ against the legal team of President Donald Trump on Saturday after it emerged his lawyers had sent a memo to Special Counsel Robert Mueller claiming that the president cannot be charged with obstruction of justice because, as the government’s top executive, he has nearly unlimited authority over ongoing Department of Justice investigations and could also, if he desired, issue pardons for those found guilty of misdeeds or illegal behavior.
In what the Times characterized as a “brash assertion of presidential power,” the 20-page letter—dated Jan. 29, 2018—states:
It remains our position that the 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, and that he could if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.
According to the Times:
Mr. Trump’s lawyers 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.
Mr. Trump’s broad interpretation of executive authority is novel and is likely to be tested if a court battle ensues over whether he could be ordered to answer questions. It is unclear how that fight, should the case reach that point, would play out. A spokesman for Mr. Mueller declined to comment.
Posted online, the confidential memo sent to Mr. Mueller by Trump’s legal team can be read here.
Citing a recent 108-page legal paper produced for the Brookings Institute (see below), Noah Bookbinder, chairperson for Citizens for Responsibility and Ethics in Washington (CREW), pushed back hard against the the claim that the president cannot—based solely on his position of power—obstruct justice. “The most fundamental American principle of all is at stake,” said Bookbinder: “No one is above the law.”
Trump’s team doubts he can obstruct justice. Well, they’re in luck: @NoahBookbinder @NormEisen and @BarryBerke lay out the obstruction case for them. Just a warning, it’s kinda long. https://t.co/kpoQFYaebI
— Citizens for Ethics (@CREWcrew) June 3, 2018
Subsequent to the revelations about the memo, Rudy Giuliani, now operating as one of Trump’s top personal attorneys, told ABC News the president would fight any attempt by Mueller to force testimony and indicated a legal battle would result if a subpoena by the special counsel’s office was issued.
“If Mueller tries to subpoena us, we’re going to court,” Giuliani said.
Reaction among opposition lawmakers, legal experts, and government watchdogs, however, came swiftly in reaction to the memo’s release:
The confidential memo from attorneys for @realDonaldTrump is, to use a legal term, ludicrous. Under their view, @POTUS could shoot a federal employee on 5th Ave and still not be able to be indicted, or even subpoenaed. https://t.co/PQuDaQroSp
— Ted Lieu (@tedlieu) June 2, 2018
Historical fact: obstruction of justice was one of the charges in both the articles of impeachment for President Nixon and President Clinton https://t.co/tXMKD4aA6G
— Citizens for Ethics (@CREWcrew) June 3, 2018
Breaking NYT publishes Trump lawyers’ memo to Mueller claiming President cannot obstruct justice. Document: https://t.co/Vm0U4MxA8B
Re-up: @DanielJHemel (prof @UChicagoLaw): “Why Trump’s Lawyer is Dead Wrong on Obstruction of Justice”https://t.co/V3RpQx4cVo
— Just Security (@just_security) June 2, 2018
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