Donald Trump’s lawyers composed a secret 20-page letter to special counsel Robert Mueller to assert that the president cannot be forced to testify while arguing that he could not have committed obstruction, because he has absolute authority over all federal investigations.
The letter is dated January 29 and addressed to Mueller from John Dowd, one of Trump’s lawyers at the time who has since resigned from the legal team. In the letter, the Trump’s lawyers argue that a charge of illegal obstruction is moot because the Constitution empowers the president to, “if he wished, terminate the inquiry, or even exercise his power to pardon.”
Trump weighed in on Saturday on Twitter, asking, “Is the Special Counsel/Justice Department leaking my lawyers letters to the Fake News Media?” He added: “When will this very expensive Witch Hunt Hoax ever end? So bad for our Country.”
Mueller has requested an interview with the president to determine whether he had criminal intent to obstruct the investigation into his associates’ possible links to Russia’s election interference. Trump had previously signaled that he would be willing to sit for an interview, but his legal team, including head lawyer Rudy Giuliani, have privately and publicly expressed concern that the president could risk charges of perjury.
If Trump does not consent to an interview, Mueller will have to decide whether to forge forward with a historic grand jury subpoena. His team raised the possibility in March of subpoenaing the president but it is not clear if it is still under active consideration. Giuliani has told the Associated Press that the president’s legal team believes the special counsel does not have the authority to do so.
“The president’s prime function as the chief executive ought not be hampered by requests for interview,” Trump’s attorneys write.
“Having him testify demeans the office of the president before the world.”
Giuliani told the Fox News Channel host Sean Hannity on May 2 that he believes an attempt by Mueller to subpoena the President could prompt litigation.
Giuliani told Hannity, “If they’re objective, we can work something out. If they’re not, then we have to shake hands and basically go into a litigation over, do they have the power to subpoena? And I think they’ve lost that power. This is a completely tainted investigation.”
A court battle is likely if Trump’s team argues that the president can’t be forced to answer questions or be charged with obstruction of justice. President Bill Clinton was charged with obstruction in 1998 by the House of Representatives as part of his impeachment trial. And one of the articles of impeachment prepared against Richard Nixon in 1974 was for obstruction.
Topics of Mueller’s obstruction investigation include the firings of both James Comey and former National Security Adviser Michael Flynn, as well as Trump’s reaction to Attorney General Jeff Sessions’ recusal from the Russia investigation.
Giuliani has said a decision will not be made about a possible presidential interview with the special counsel until after Trump’s summit with North Korean leader Kim Jong Un on June 12 in Singapore.
Giuliani told Fox News on May 12 that Mueller notified Trump’s legal team two weeks prior that he will not indict the president.
The Trump attorney said Mueller will follow Justice Department policy stating a sitting president cannot be indicted.
In a statement to CNN, Giuliani said, “All they get to do is write a report.”
”They can’t indict. At least they acknowledged that to us after some battling, they acknowledged that to us,” Giuliani added.
The Justice Department’s guidance on whether it can indict a sitting president is laid out in a 1999 memo.
“This case is essentially over,” Giuliani told the Fox News Channel.
“They’re just in denial.”
The Associated Press contributed to this report.
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