President Donald Trump’s lawyers sent a confidential, 20-page letter to Special Counsel Robert Mueller in January, laying out all the reasons why the commander in chief should not be subpoenaed. At the heart of the letter is the contention that Trump could not possibly have obstructed justice because the Constitution grants him authority over all federal investigations. The letter, which was obtained and published by the New York Times, illustrates how the president’s lawyers are working overtime to try to prevent the special counsel from issuing a subpoena in an effort to force Trump to answer questions on an obstruction of justice charge.
In the January letter, the lawyers John Dowd and Jay Sekulow respond negatively to a request to interview the president, arguing in part that he’s way too busy running the country. The lawyers list 16 areas that Mueller wanted to question the president about and say the special counsel’s office already has all the material it needs from documents and other testimony.
In what the New York Times describes as “a brash assertion of presidential power,” the president’s lawyers claim he can’t actually obstruct the investigation into Russia’s involvement in the presidential election because Trump has the power to “if he wished, terminate the inquiry, or even exercise his power to pardon.” That broad view of presidential power could be at the heart of any legal battle over a subpoena.
Yet any battle in the courts may not turn out so well for Trump’s attorneys considering their understanding of obstruction of justice law seems to, at the very least, be outdated. In one portion of the letter, the president’s lawyers say investigators are looking into Trump asking then FBI chief James Comey to end the investigation into his former national security adviser Michael Flynn. According to Trump’s lawyers, that couldn’t have possibly been obstruction because Trump didn’t know Flynn was under investigation. But the attorneys cite an outdated statute to make that claim, failing to mention that a broader 2002 law makes it a crime to obstruct an investigation even before it officially starts. “The president’s lawyers do not mention this statute, whose existence appears to render several of their arguments beside the point,” notes the Times.
Shortly before the New York Times published its story online there was a hint that something was going to be coming down the pipeline. Earlier on Saturday Trump took to Twitter to complain about the ongoing investigation. “When will this very expensive Witch Hunt Hoax ever end? So bad for our Country,” wrote Trump. “Is the Special Counsel/Justice Department leaking my lawyers letters to the Fake News Media?”