Trump Lawyers Claim Breathtaking Power, Privilege in Mueller Investigation

Steven D. Schwinn, John Marshall Law School

The New York Times released a memo penned by Trump lawyers to Special Counsel Robert Mueller earlier this year outlining their theory of executive power and privilege in relationship to Mueller's investigation.

The memo is only the analysis of President Trump''s lawyers. It's not the law. Getting a judicial decision on these issues would require this extraordinary sequence: (1) Mueller to subpoena President Trump to testify, (2) President Trump to decline, and (3) Mueller to attempt to enforce the subpoena in court.

The memo contains a number of eye-popping claims, highlighted by the Times in its analysis. Here are two broad, even breathtaking, constitutional positions in the memo:

1.    The President, by definition, cannot commit obstruction (or even any other federal crime). The memo says that the President, as chief executive, cannot constitutionally commit obstruction of a federal investigation:

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.

The language seems to justify absolute presidential immunity for two different reasons, (1) because prosecution would amount to the president obstructing himself, and (2) because he could terminate the inquiry or issue pardons (presumably even pardon himself). The second reason sweeps beyond obstruction charges and suggests that the President, by definition, cannot violate any federal law, recalling President Nixon's infamous claim that "when the President does it, that means that it is not illegal."

2. The President is protected against an interview with Mueller by executive privilege. Citing In re Sealed Case (the Espy case), the memo concludes that President Trump is protected by executive privilege, because Mueller already has enough information to answer the questions he's investigating:

The records and testimony we have, pursuant to the President's directive, already voluntarily provided to your office allow you to delve into the conversations and actions that occurred in a significant and exhaustive manner, including but not limited to the testimony of the President's interlocutors themselves. In light of these voluntary offerings, your office clearly lacks the requisite need to personally interview the President.

Notably, the memo does not offer a specific reason for the privilege beyond the President's general need for frank and candid advice from advisers. Instead, it takes the tack that Mueller already has the information he needs, and that he hasn't demonstrated a need to interview the President himself. But this conclusion rests on the many and highly questionable assumptions and conclusions in the rest of the memo, in particular, that the President can't obstruct justice, that he didn't intend to, anyway, and that there was no collusion with Russia.

It also assumes, of course, that Mueller actually has all the information he needs about President Trump's involvement.