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.

15 thoughts on “L’état, ce n’est pas Trump

  1. You need to append the remarks by Rudy that the president believes he has the power to pardon himself. Rudy then goes on to say, "he's not going to, but he could". Right. This isn't a trial balloon to see who reacts and how.

    For Giuliani to say Trump can pardon himself is the announcement by the president's TV lawyer that Trump has committed a crime or crimes. It's also the admission that Trump's lawyers know Mueller has the evidence of those crimes. I've always kept an open mind, and I still do, about whether Mueller would find criminal behavior, but there's not much room for doubt. Trump is nailed because the best defense Trump's lawyers have offered says the president is above the law.

  2. As worded, the US Constitution would allow the POTUS to pardon himself if convicted, and possibly if charged. If he hasn't been convicted or charged, I am inclined to doubt it.

    My opinion of the intent of the founders is that the POTUS can't be charged with a crime while in office. Maybe it's addressed in the Federalist Papers. I think the authors of the Constitution intended to insulate the POTUS from phony criminal charges, and therefore required a two-thirds majority in the Senate to remove the POTUS with the expectation that after he was removed, he would then be at risk in a criminal trial, federal or state. 

    Ford pardoned Nixon before charges were filed. As far as I know, that was never challenged in court (by filing criminal charges). Is it a binding precedent? We're on the threshold of groundbreaking events that will make or break the democracy.

  3. " the announcement by the president's TV lawyer that Trump has committed a crime or crimes "

    Doug, your right, in fact Giuliani admitted tRumps guilt last week as well, when he admitted their spygate strategy was to sway public opinion because: " it is for public opinion, because eventually the decision here is going to be impeach or not impeach". Giuliani is a sleazeball, a grifter and a crook but he's not stupid, he knows tRump is guilty as hell!

  4. The actions of the Pretender and his henchmen bespeak escalating panic. Innocent people would surely be worried about a probe into basically one’s whole life. That said, they are scared s-less and it shows “bigly”. Trump probably has dozens of felonies, many, perhaps, totally unrelated to Russia. Tax fraud. Illegal shell accounts.

    But, it’s a “chicken or egg” situation. He is clearly at best a crook, more likely a traitor and there is no chance America will have the numbers in the legislature to impeach. Not happening. Simple majority, possible but not assured, in 2019, does not cut it.

    I am not a lawyer, but I think Mueller needs to show a case directly to the SCOTUS and ask for a non-precedent setting waiver to indict directly. Would they do it? Dunno, but America hasn’t been in this much peril since at least the Civil War, and this one can be resolved peaceably with a simple court directive.

  5. Here's what tRUMP and his cabal of evil crooks want to hear (AND SOON!):

    "If it's Sunday, it's Time to 'Meet the Pres-tidigitators.'"

    tRUMP's lawyers and TV defendants need some pretty damn seriously powerful magic to make people un-see and un-hear what they saw and heard the President – and prime suspect – say on a NATIONAL TV NEWS PROGRAM, and in PRIME TIME, yet!


  6. The entire country is being gaslighted. This memo is absurd.The Giuliani propaganda war has been running unopposed for a month. Who will push back?

  7. Trump est un gros sac de merde

    How's my French?  Actually how's google translator's French?

    • Swami — according to Google, in Latin it’s “Trump est a magnus stercus in lapides sacculi.” That sounds more formal.

  8. "Trump estas granda sako de merdo" in Esperanto.

    Maybe Vagabonde will tell us how good google translate is for French, she would know.

    I've used it a lot since I frequent the French ebay and leboncoin, looking for old gypsy jazz guitars.  It seems to me that it's still got its faults, but, it's a lot better than it was a few years back.   It also depends on how you phrase what you're saying in English.  So, I think you get better at using it, especially at picking out its mistakes.   There are certain aspects of French grammar that it can't interpret the through context.  But, as a student, that's what you need to practice.
    Once you learn to work with it, it's pretty functional.  One of my French friends remarked that my French was improving by "giant steps."  Then, of course, I was obliged to let him in on my cheating.    One of the fellows I bought a guitar from wanted to meet up with us after we exchanged several emails.  I had to explain again.   Now, I usually advise my interlocutors that I have some French, but, I use translate to double check what I am writing.  Learning a new language as a codger is far more difficult than it would have been as a younger person.

    It's really good practice to write in the language you are studying and see how it translates into English.   So, it's a great study aid, but, you wouldn't want the UN using it for official business. 

    Sorry to be so windy. 

  9. The fact that the public conversation is already turning to the subject of Pardons, says there's a tacit admission of guilt in there. A few months ago, pardons weren't on the radar, it was all about discrediting investigations.

  10. This site is getting pretty stinky. Tee Hee. We have French, Latin and Spanish translations.  Now I would like to see Egyptian heiroglyphics and Chinese characters.  Anybody?

  11. grannyeagle…If I knew how to chisel cuneiform in a rock saying: Trump is a big bag of shit.. It would have been done by now. 

     Here's the traditional Chinese translation…. according to google. It could be saying Trump is as sweet and gentle as a lotus blossom, but I really wouldn't know. I'll take them at their word that Trump is a big bag of shit.  


  12. The sum total of Trump's arguments in the letter is that he is not president but a King, and that alone should be alarming enough, given that the Founders explicit sought to not have the head of government with the same powers as that which they rebelled against.  If Trump can shut down any investigation, pardon himself without repercussion, unilaterally charge political opponents with crimes, and with the support of a GOP Congress not face any repercussions, then democracy is dead and we're back to monarchy. This is very serious stuff, and unfortunately reporting is not communicating to the lay consumers just how serious it is.  Trump being the moron he is probably doesn't get it either, but those around him do.


    We need to keep close watch on this, lest the Republic be ripped right out from under us in broad daylight.

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