- President Donald Trump’s personal defense team sent a lengthy memo to the special counsel Robert Mueller this year in which they made several bombshell arguments and admissions.
- They said Trump cannot be guilty of obstruction of justice because he has the power to shut down any federal investigation.
- They acknowledged Trump dictated a misleading statement his son released in response to reports that Trump Jr. met with a Russian lawyer at Trump Tower in June 2016.
- They claimed Trump does not need to sit for an interview with Mueller because prosecutors and Congress have “received the full cooperation and testimony” of witnesses in the Russia probe — which they did not.
- They did not elaborate on Trump’s frustration toward Attorney General Jeff Sessions or his conversations with Sessions about Mueller — key events the special counsel is examining — citing executive privilege.
Sign up for the latest Russia investigation updates here »
President Donald Trump cannot be guilty of obstruction of justice because he has absolute authority over all federal investigations.
That’s the argument Trump’s lawyers made in a 20-page memo they sent to the special counsel Robert Mueller in January, which was published in full by The New York Times on Saturday.
The memo, written by defense attorneys John Dowd and Jay Sekulow, offers fresh insight into the legal team’s strategy as it debates whether to have Trump submit to an in-person interview with the special counsel.
Dowd no longer works on the legal team, but he told Business Insider this week that he is in regular contact with the team, which is now led by former New York City mayor Rudy Giuliani.
Dowd strongly pushes back against any sit-down between Trump and Mueller, arguing that prosecutors would trap him into making false statements — a crime several Trump associates have been charged with or pleaded guilty to in the Russia investigation.
Dowd and Sekulow argued in the January memo that Trump did not have to interview with Mueller because all the questions Mueller has relating to potential obstruction of justice have already been answered by other witnesses and documents the White House turned over to the special counsel. They cited a 1994 independent counsel investigation into a Clinton administration official as precedent for their argument.
Trump’s lawyers argue he cannot legally be guilty of obstruction of justice because he is authorized to shut down federal investigations
According to legal experts, by far the most striking argument in the memo was one which said Trump’s actions, “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, he if wished, terminate the inquiry, or even exercise his power to pardon if he so desired.”
The claim adds to reports last year which said Trump had asked multiple aides and advisers whether he could pardon friends, associates, or even himself with respect to the Russia investigation.
This week, he pardoned the conservative commentator Dinesh D’Souza and mused about pardoning the television personality Martha Stewart and commuting the sentence of former Illinois Gov. Rod Blagojevich.
D’Souza, Stewart, and Blagojevich were convicted, among other things, of crimes such as obstruction of justice, making false statements, or campaign finance violations.
The memo goes on to highlight the “cooperative” and “informal” relationship between Trump’s team and Mueller’s office. But defense lawyers also levied an attack against the special counsel, saying the president had been burdened by “astounding public revelations about the corruption within the FBI and Department of Justice which appears to have led to the alleged Russia collusion investigation and the establishment of the Office of Special Counsel in the first place.”
Dowd and Giuliani doubled down on those claims this week in interviews with Business Insider.
“This is one of the greatest frauds I’ve ever seen,” Dowd said, referring to the Russia probe. “[Former FBI director James] Comey conned everyone, and I’ve said that to [Mueller]. And now there’s this so-called ‘Spygate.’ It’s beyond imagination that the FBI would do that. You don’t send guys in under fake credentials to spy on a presidential campaign.”
“Spygate” is the term Trump uses to refer to recent reports that an FBI informant contacted members of the Trump campaign who were suspected of communicating with Russians during the election. The president and his loyalists falsely allege that the FBI instead “planted” a “spy” within the campaign to cripple Trump’s chances of winning the election.
Broad claims of executive privilege
Trump’s lawyers also state in the memo that Mueller’s office and Congress “received the full cooperation and testimony” of current and former White House staffers, senior advisers, and campaign aides.
“The majority of that information could have been rightfully withheld on multiple privilege grounds, including but not limited to the presidential communications privilege,” they continued.
But several key witnesses, like former White House chief strategist Steve Bannon and former White House communications director Hope Hicks, cited executive privilege when they refused to answer most questions posed to them while testifying before Congress this year. Bannon’s lawyer was also communicating with the White House counsel Don McGahn at several points during his testimony.
Trump’s lawyers went on to highlight some key events Mueller is known to be interested in, including Comey’s firing and that of former national security adviser Michael Flynn, as well as Trump’s well documented frustration toward attorney general Jeff Sessions about his recusal from the Russia probe.
In addition to casting doubt on Comey’s credibility as a witness, the defense contended that Mueller did not need to interview Trump about Comey’s and Flynn’s firings because he already had all the information from other witnesses, and because Trump had not done anything wrong and was lawfully exercising his executive power.
Trump’s lawyers did not elaborate on Trump’s reaction to Sessions’ recusal or to Mueller’s appointment, or his discussions with Sessions about the appointment. According to The Times, the defense views those subjects as protected under executive privilege.
Trump’s lawyers wrote briefly about news reports last year which said Trump told two top Russian officials during an Oval Office meeting last year that firing “nut job” Comey had taken “great pressure” off of him. Dowd and Sekulow did not acknowledge that such a conversation occurred but added that had it taken place, Trump’s admission would not have put him in jeopardy. Notably, according to the memo, Trump’s lawyers addressed the topic more fully in a separate, classified document they sent Mueller’s office.
Trump’s team admits he ‘dictated’ Trump Jr.’s statement about the June 2016 Trump Tower meeting
At the end of the memo, Trump’s lawyers made one of the most significant admissions to date: that he dictated a statement that his son, Donald Trump Jr., released last year in response to a Times report that he met with a Kremlin-connected lawyer and lobbyist at Trump Tower in June 2016, at the height of the presidential campaign.
The statement said the meeting was short, centered around the adoption of Russian children, and did not touch on any campaign-related issues.
The statement later had to be amended several times after it surfaced that Trump Jr. took the meeting after he was offered dirt on then Democratic nominee Hillary Clinton as “part of Russia and its government’s support for Mr. Trump.” Prosecutors are now examining whether Trump intended to obstruct or conceal evidence of the Trump campaign’s contacts with Russia.
Trump’s legal team’s acknowledgement that Trump dictated the initially misleading statement marks the first time that the president’s representatives have admitted to his role in the matter. CNN reported after the memo was published that Sekulow and White House press secretary Sarah Huckabee Sanders denied Trump had any role in the matter on at least five separate occasions.