In January, President Donald Trump’s attorneys submitted a memo to Special Counsel Robert Mueller’s office, politely explaining why the commander in chief shouldn’t or wouldn’t participate in their investigation. Why the memo has been leaked now – and by whom – is a mini-scandal in its own right, and we’ll discuss that in a minute.
But the contents of the memo are what’s making headlines Sunday. In it, the president’s lawyers assert all kinds of unprecedented powers and privileges no other president has yet tried, including refusing to comply with a subpoena and reserving the right to pardon anyone he wants, even himself.
Many of the president’s allies have applauded this confrontational approach to the Mueller investigation and the so-called “Deep State,” but anyone with a background in the law or the constitution has panned the substance of these theories, particularly the masturbatory pardoning power it asserts.
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A scathing editorial in the The New York Times summed up the legal concerns with the memo, and then proceeded to decimate the president and his lawyers for their unmitigated assault on the rule of law.
“The central claim of the legal memorandum is that it is impossible for the president to illegally obstruct any aspect of the investigation into Russia’s election meddling,” writes Harry Litman, a former U.S. attorney and deputy assistant attorney general.
The reason for this impossibility, Mr. Trump and his lawyers want people to believe, is that the Constitution grants the president both the authority to end any investigation conducted by the executive branch, and the power to pardon anyone that investigation may find culpable.
“Therefore, and this is the key and indefensible point,” Mr. Litman contnues, “he [Trump] cannot obstruct justice by exercising this authority ‘no matter his motivation.’ ”
If this is the theory on which the president is basing all of his decision making, then our democracy is in more peril than we realized, Mr. Litman concludes, writing “This understanding of presidential power is radical and absolutist. It is also unsound and almost certain to be sharply rejected should it ever be proffered in court.”
Beyond its troubling implications for the rule of law, the application of this theory to the current set of circumstances driving the special counsel’s investigation just doesn’t add up logically.
“Imagine, for example, that the worst version of facts proves true,” Mr. Litman argues, “that Trump fired the F.B.I. director, James Comey, tried to fire Mr. Mueller, constructed a false account of the June 2016 Russia meeting, and tried to force Attorney General Jeff Sessions to reverse his recusal decision that was driven by Justice Department policy, all to protect his own skin and his family’s fortune.”
“If this were the case,” he continues, “the elements of obstruction — in brief, the interference or attempted interference with an official proceeding, such as a grand jury investigation — would be plainly met. Most important, the president would have acted with corrupt intent as it is well understood under the law.”
More from the New York Times:
No tenable account of executive power holds that a president’s purposes in exercising powers accorded under Article II, “to take Care that the Laws be faithfully executed,” have no import. If it were otherwise — if the president had the authority to use his constitutional powers for any reason — it would follow that he could accept a bribe for doing an official act, or, more saliently, extend a pardon to keep a witness from testifying. This would very clearly violate the maxim that the president is not above the law.
Litman further destroys this legal theory by showing how the impeachments of Presidents Clinton and Nixon could not have proceeded were it to have any merit.
This hail-mary legal defense is so unsound on its face and stands little to no chance of impressing a judge, let a lone a grand jury, that many smell a rat. Robert Mueller’s office has been notoriously leak proof, and so most observers suspect that Trump’s lawyers engineered this memo’s leak – as well as others like the 4 dozen questions that Mueller allegedly wants to ask Trump.
This begs the obvious questions: why would the president want this dubious document made public, and why now?
The answer appears to be obvious. President Trump’s lawyers know they’re cooked legally, and so they’re trying desperately to have this case tried politically. In other words, they know they can’t win in a court of law, where evidence, legal precedent, witnesses, and their corrupt client and his accomplices all point to a clear guilty verdict.
In the court of public opinion, however, they think they have a shot, and so everything the president, his lawyers, and his minions in the media have said and done has been to have the case moved to this more favorable jurisdiction, as it were.
The brash posturing, the fallacious legal arguments, the constant echoing of ‘no collusion,’ the advancing of conspiracy theories, even their recent comfortability talking about ‘impeachment’ have all been part of an elaborate, carefully choreographed performance they hope will take Trump’s fate out of Robert Mueller’s hands and put it into the hands of voters – literally.
Rather than continuing to insist on his innocence in the Russian collusion investigation, the president wants to bypass the pesky legal part of it and put impeachment on the ballot for the 2018 midterm elections. He wants to force candidates in both parties to declare how they would vote if Robert Mueller recommends articles of impeachment against the president. Giuliani has said as much.
“Eventually the decision here is going to be impeach or not impeach,” he told CNN’s Dana Bash in late May. “Members of Congress, Democrats and Republicans, are going to be informed a lot by their constituents. And so our jury – and it should be – is the American people.”
Between now and then, their plan is to both influence that jury pool with false and misleading interpretations of the law, while simultaneously painting the investigation as politically motivated and somehow illegitimate. They’ve calculated that they can confuse enough voters to keep the feckless and complicit Republicans in the majority, and thus avoid impeachment.
Looking back from where we are now, it seems that the president has been maneuvering for this all along. The scariest part is, it just might work.