L’état, ce n’est pas Trump

The letter from Trump’s lawyers to Bob Mueller that the New York Times published is a bit of a slog, so if you want to skip it just go straight to this analysis by David Kris at Lawfare that refutes the letter’s legal claims.

First, per David Kris, Trump can’t argue that he doesn’t need to be interviewed because other evidence is available.

I’m not going to try to sum up this paragraph:

Second, even if Trump did order Comey to drop the investigation, the letter says, his defense lawyers have identified a criminal statute, 18 U.S.C. § 1505, that couldn’t have been violated because (they say, as have some courts) it doesn’t apply to FBI investigations. In connection with this legal argument, the letter seems to argue several fallback positions, although they are presented in ways I found a bit hard to follow. Among them are claims that there was no FBI investigation; that if there was an investigation it was closed (or at least was thought to be closed by certain members of the White House staff) by the time the president spoke to Comey about Flynn; that Flynn didn’t lie to the FBI; that Flynn did lie to the White House about various matters (and was fired for it); and that in any event he ultimately pleaded guilty so there could not have been any obstruction. I am not sure how the special counsel will react to all of this, except that he and his team will likely get at least as far as Charlie Savage of the New York Times did in noting that there are several statutes that may have been violated, see, e.g., 18 U.S.C. § 1512, and that obstruction need not succeed to be a crime.

Third — well, I’ll go to the letter from Trump’s lawyers here —

Many in the media have relied on mischaracterizations of the President’s remarks in a May 11, 2017, interview with Mr. Lester Holt of NBC News, to claim or suggest that in that interview, the President stated that the real reason he fired Comey is the Russia investigation.49 Unfortunately, so has Mr. Comey. He testified that: “I [take] the president, at his word, that I was fired because of the Russia investigation.”50 Regrettably, no one asked Mr. Comey when he thought the President had actually said any such thing because, in fact, the President did not ever say such a thing.

We all know what Trump said in the Lester Holt interview, but here it is for the record.

Trump actually started out to make the argument that Comey was incompetent, but he did say the fatal words —

But regardless of recommendation, I was going to fire Comey knowing there was no good time to do it

And in fact, when I decided to just do it, I said to myself — I said, you know, this Russia thing with Trump and Russia is a made-up story. It’s an excuse by the Democrats for having lost an election that they should’ve won.

In the continuing interview, Trump did say he expected the investigation to continue, which Trump’s lawyers claimed supported Trump’s support for the investigation. But since then there have been copious reports — a regular plethora of reports — about all the ways Trump has had to be talked down from shutting down the investigation by firing anybody involved in it. And how many times has he badmouthed the investigation on Twitter?

Here’s another bit from the letter —

There have also been press reports — citing anonymous sources — about comments the President allegedly made during a May 9, 2017, meeting with Russian government officials that Comey was a “real nut job’’ and that “great pressure because of Russia” has been “taken off” him.54 Assuming arguendo the President said any such things, it (i) does not establish that the termination was because of the Russia investigation (regardless of the validity of such an opinion, presumably any President would not want someone he considered a “nut job” running the FBI); and (ii) in any event would be irrelevant to the constitutional analysis. A short, separate, classified response addressing this subject will be submitted to the Office of Special Counsel.

They are arguing that Trump didn’t say this; that if he did say it, it doesn’t necessarily mean the termination had anything to do with the  Russia investigation; if he did say it, that doesn’t necessarily mean Comey is a “nut job”; but would you want a “nut job running the FBI?; and none of this is unconstitutional, so screw you.

Back to the David Kris analysis:

Finally, the letter says, although Trump may have helped Donald Trump, Jr. lie about the meeting at Trump Tower in which a purported Russian government official was supposed to provide dirt on Hillary Clinton, that was just “a private matter with the New York Times,” not an interview with the FBI, and therefore not a crime about which he can be questioned. As arguments for Trump’s innocence despite his prior statements, these arguments are strained. As arguments against even asking him about the statements, they strike me as pretty silly.

The final sentences of the letter are perhaps the most meaningful, albeit unintentionally. They say that Trump’s lawyers are prepared to “provide . . . the answers” to the Special Counsel’s questions, apparently instead of having Trump do so himself, in order to help “preserve the dignity of the Office of the President of the United States.” I spent a moment wondering, but in the end I think they didn’t mean this the way it sounds.

A large part of the rest of the letter is given over to arguments that boil down to “if the President does it, it’s not illegal.” Yeah, somebody tried that one already.


Jonathan Chait writes,

Should Trump’s legal case prevail in the courts — and the legality of such broad claims remains largely untested — it would confer upon any president, but immediately Trump, the ability to open charges against anybody the president wants to charge, and prevent investigations of anybody the president wants to protect, beginning with himself. This is l’état, c’est moi rendered as a formal legal case.

I can’t believe that any court would support the position of Trump’s lawyers. But I’ve been wrong before.