On Saturday, the New York Times published a confidential letter that President Trump’s lawyers Jay Sekulow and John Dowd sent in January to special counsel Robert Mueller arguing that Mueller cannot subpoena the president. Most of the commentary so far has been about the letter’s assertion of extreme and unprecedented executive power. But buried in the letter is a bigger bombshell: an apparent admission that Trump obstructed justice.
Before getting to the bombshell, it’s worth briefly considering the president’s legal argument. Here’s a summary: Trump cannot have violated an obstruction statute in the Russia investigation because the president has authority over all federal investigations. The Constitution empowers the president to “terminate the inquiry, or even exercise his power to pardon if he so desired.” Trump’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.”
I’ve written before about why this constitutional argument, an absolutist extension of the rejected “unitary executive” theory, is wrong. It is the same as saying that if a president accepted a bribe to fire FBI Director James Comey or issue pardons, he cannot have violated a bribery statute because of his power as chief law enforcement officer. The Constitution giving an official a power has never meant that the power can be used in violation of criminal statutes that apply equally to everyone. (I’ve elaborated on that point here and here. Ethan Leib and I have also addressed constitutional limits on the pardon power based on new historical evidence.)
One of the letter’s legal arguments on obstruction was both incompetent and now obsolete, and that point turns out to be highly relevant to the bombshell. The lawyers argue that, “as a matter of law, even if there had been an FBI investigation there could have been no actionable obstruction of said investigation under 18 U.S.C. § 1505, since an FBI investigation is not a ‘proceeding’ under that statute. Since there is no cognizable offense, no testimony is required.” They cite this statute 39 times, but they ignore the more relevant obstruction statute, 18 U.S.C. 1512(c)(2), which states:
“(c)Whoever corruptly (2)… obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.”
Legal commentators have been focusing on this statute since Trump fired Comey, but Trump’s lawyers pretend it doesn’t exist. Some lower federal courts have ruled that an FBI investigation counts as an official proceeding, though there is disagreement. Regardless, Congress had already started its investigation, and it clearly counts under both statutes. Moreover, the Supreme Court ruled two months ago in a 7–2 decision in Marinello v. U.S., a case involving similar obstruction laws, that these statutes are not limited to already existing investigations but also apply to “foreseeable” proceedings. The FBI investigation, congressional investigation, and some related prosecutions were not just foreseeable at the time: They were foreseen and inevitable. The obstruction statutes apply to Trump’s conduct in 2017.
This legal argument is especially important, because it is the criminal law context for the remarkable admission in the middle of the letter (emphasis added):
You have received all of the notes, communications and testimony indicating that the President dictated a short but accurate response to the New York Times article on behalf of his son, Donald Trump, Jr. His son then followed up by making a full public disclosure regarding the meeting, including his public testimony that there was nothing to the meeting and certainly no evidence of collusion. This subject is a private matter with the New York Times. The President is not required to answer to the Office of the Special Counsel, or anyone else, for his private affairs with his children.
Let me make two observations about the analysis that follows. First, I am using a standard of “probable cause,” the evidentiary threshold for indictments. Second, I’m assuming that the evidence “indicating that the President dictated” a short response is sufficient to conclude that, in fact, he probably did, and that Trump Jr.’s statement reflected the substance of his father’s dictation. With those assumptions in mind, the lawyers’ letter appears to be a confession to obstruction of justice. Some had speculated that President Trump shaped his son’s statement. Now there seems to be an admission that he dictated it.
This is Trump Jr.’s media statement on July 8, 2017, following the New York Times’ reporting that he had met with Russians in Trump Tower in June 2016: “It was a short introductory meeting. I asked Jared [Kushner] and Paul [Manafort] to stop by. We primarily discussed a program about the adoption of Russian children that was active and popular with American families years ago and was since ended by the Russian government, but it was not a campaign issue at the time and there was no follow up.”
That statement was false. The meeting was not primarily about adoption. Emails and statements have demonstrated it was primarily about “dirt” on Hillary Clinton provided by Russian sources. Rob Goldstone’s initial email informed Trump Jr. that a Russian contact “offered to provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father.” Trump Jr. replied, “[I]f it’s what you say I love it especially later in the summer.” None of their 16 email exchanges mentions “adoptions.” The meeting was not about adoptions. This is no gray area: Trump Jr.’s statement was a lie. It’s also not clear that “there was no follow-up.” The president’s lawyers’ description of it in their letter as “accurate” is, to put it mildly, inaccurate.
In the midst of the discussion about this statement, Hope Hicks reportedly told President Trump on a conference call that the Trump Jr. emails “will never get out …” This letter wasn’t simply a media statement. It was their political and legal strategy. The Mueller investigation was up and running. This statement boxed Trump Jr. into a false and misleading account as he approached inevitable congressional and FBI questioning. Trump Jr. would have to face a significant cost to his credibility in public and in court if he had to contradict this statement. Trump spokesman Mark Corallo, who participated in these calls, was reportedly so concerned that these events constituted obstruction that he resigned and later spoke to Mueller’s prosecutors.
This new letter confirms Corallo’s instincts. Here is the relevant criminal statute on witness tampering, 18 U.S.C. 1512(b):
“(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to— 1) influence, delay, or prevent the testimony of any person in an official proceeding; (2) cause or induce any person to— (A) withhold testimony,… shall be fined under this title or imprisoned not more than 20 years.”
If the underlying facts reflect what Trump’s lawyers’ letter says, there appears to be probable cause that the president corruptly persuaded his son with intent to influence his obviously foreseeable testimony in an official proceeding, whether to Congress, to a grand jury, or at trial. (Trump also probably engaged in “misleading conduct” under this statute for such tampering purposes.) Again, this was not just a media statement about something like The Apprentice. It was publicly committing to a narrative as legal proceedings loomed.
What about the statute’s phrase “corruptly persuade”? What about the argument that no one forced Trump Jr. to lie? It’s true that Trump Jr. is an adult and may face consequences for these falsehoods and apparently lying to Congress about a second Trump Tower meeting. But “persuading” has a relatively low threshold, and it’s important to acknowledge that a president has unique powers to persuade. President Trump was (and is) his boss, practically speaking, and also his father. (It’s worth pausing on that point for a moment: President Trump persuaded his own son to lie and put himself in greater criminal jeopardy.)
If President Trump dictated this version to his son, did he know that it was false? This is an open question, but that’s why prosecutors use subpoenas, indictments, and trials: to ask questions. There is probable cause to think he did know, either at the time or in questioning Don Jr. after the news reports had come out. If Hope Hicks indeed told President Trump during this episode that Trump Jr.’s emails “will never get out …”, it’s safe to assume he knew what the meeting was about. Moreover, as he was setting up the Trump Tower meeting with Russians, Don Jr. called a blocked number twice. A prosecutor would want to know if he called his father. (Maybe Mueller’s team already has those phone company records).
The letter’s admission to obstruction isn’t the first publicly documented evidence of obstruction. First, President Trump told both Russian officials and Lester Holt on NBC that he fired Comey because of Russia. Second, Comey testified that Trump asked him to “let go” of Flynn; later, a Trump tweet indicated he knew at that time that Flynn had committed crimes. Now we may have learned about a third admission this weekend: That the president tampered with witnesses in violation of obstruction statutes. With this letter’s admission added to the public evidence, we’re approaching a Watergate-level smoking gun on obstruction. Remember that there was never proof Nixon ordered the break-in. There was only proof of obstruction and interference with the investigation.
The timing of this revelation is fitting: The Watergate smoking gun, the Oval Office tapes, were revealed in late spring 1974, about six months before the midterms. These Trump admissions also come roughly six months before the midterms. Once Senate Republicans in 1974 saw the writing on the wall, they eventually said enough. Today the question is whether this GOP Congress, staring down three smoking guns and counting, will ever do the same.