Inside Donald Trump’s ill-fated confidential memo
On Saturday, The New York Times reported about a twenty-page memo that Donald J. Trump’s lawyers hand-delivered to Special Counsel Robert Mueller trying to get Mueller to withdraw any efforts or thoughts about subpoenaing Trump to testify in the investigation. The memo is breathtaking in its positions and arguments that an interview of Trump is not required, as well as potential legal defenses against any subpoena the special counsel might issue. The memo asserts:
“After reviewing the list of topics you presented, it is abundantly clear to the undersigned that all of the answers to your inquiries are contained in the exhibits and testimony that have already been voluntarily provided to you by the White House and witnesses, all of which clearly show that there was no collusion with Russia, and that no FBI investigation was or even could have been obstructed.”
“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 him.”
The second paragraph suggests that the lawyers believe Trump might have authority to shut down the investigation and also pardon himself. Neither idea has been tested by any previous president and suggests that the president is above the law. Most legal scholars rebut those ideas. When one looks at the debates that centered around the position of leadership of the nation, great fears were presented about the executive who would have the same characteristics of a king and was rejected.
The memo also again purports to frame the questions and topics that Mueller discussed with the Trump lawyers back in January. Mueller likely will not respond publicly, so there is no way to know whether the list is accurate. The memo also attacks the FBI and has some debunked conspiracy theories throughout. Sadly, the lawyers try to destroy the credibility of the FBI and Department of Justice by attacking them as being extremely corrupt. Finally, it makes a number of arguments should a subpoena be issued.
The confidential memo is now in the public. Whether it was intended to get Mueller to back down, or to threaten termination of the investigation, or to prepare the base, it is an interesting memo that is not likely to affect Mueller as he continues his work.
Daniel is a lawyer writing and teaching about SCOTUS, and is the author of the book “The Chief Justices” about the SCOTUS as seen through the center seat.