Cartoon by Signe Wilkinson
Trump's lawyers want legal immunity for the president. Who will stop them?
By Jill Abramson, US columnist
The Guardian: Donald Trump’s vision of executive power is so expansive that it would make Richard Nixon blush. The memo outlining unbridled presidential powers drafted by his lawyers for Robert Mueller goes far beyond what even the biggest fans of strong, unitary executive power, like the late US supreme court justice Antonin Scalia, ever dreamed. It essentially puts the president above the law.
Trump’s legal claim of limitless power would mean that he can defy any subpoena from Robert Mueller and his lawyers also say he has immunity from obstruction of justice charges related to his firing of the former FBI director James Comey.
Trump’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 himself”, the lawyers John Dowd and Jay Sekulow wrote Mueller back in January.
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Their arguments are laughably unconstitutional, but who will stop them from drawing a curtain of infallibility around their client?
Certainly not Congress, as long as the Republicans are the party in control. Any hope that Republican leaders would abandon their ethically stained and morally bankrupt president has vanished. The Republican base has remained steadfast in its support for Trump and congressional leaders are scared to death of alienating hardcore Trump supporters.
Perhaps the US supreme court might take exception to Trump’s breathtaking legal chutzpah. But this might be a pipe dream, too, and after appointing the rightwing Neil Gorsuch, Trump is just a vacancy away from driving the court firmly to the right. Additionally, Mitch McConnell has certified a raft of Trumpian lower court judges.
The rule of law and the sanctity of constitutional values are what make American democracy such a marvel to the rest of the world. But no president has done more than Trump to trash the American legal system.
First came his war against the FBI. Then came the ridicule of the attorney general, Jeff Sessions, and the false conspiracy allegations that a justice department cabal tried to engineer Trump’s electoral defeat. All of this is ridiculous background noise meant to undermine the validity of the criminal investigation into Russian meddling in the 2016 election.
None of this has been surprising and much has been foreshadowed. Trump’s unilateral approach to the presidential pardon, without adhering to any past practices by other presidents, was concerning. First came Scooter Libby and Joe Arpaio. Then Dinesh D’Souza and rumblings of others, like Martha Stewart. But the real question is whether Trump has the power, if need be, to pardon himself. Such a breathtakingly daring move of self-protection would seem to invite impeachment proceedings, but with this Congress, who knows?
Other presidents have tested the limits of executive power, but nothing on this order of magnitude. FDR got brushed back when he tried to pack the US supreme court. Nixon attempted to defy court orders to turn over the White House tapes but after the US supreme court ruled against him, he resigned.
Trump’s new lawyer, Rudolph Giuliani, praised the letter as containing “excellent legal arguments”. Appearing on ABC’s This Week, he absurdly claimed that most presidential lawyers would make the same type of claims. “I mean, this is basically, I think, what most constitutional lawyers who tend to try to protect the presidency would say,” about the contention that a president by definition cannot obstruct justice.
Almost immediately, respected constitutional scholars such as Lawrence Tribe debunked the memo on Twitter, calling it “not ready for prime time and not intended for any audience other than Trump’s base and gullible folks ready to buy whatever Trump is selling”.
For his part, the president used the leaking of his lawyers’ memo to Mueller as an excuse to lash the “fake news media” once again and to blast the Mueller investigation as a baseless witch-hunt. On the afternoon of 2 June, he tweeted: “There was No Collusion with Russia (except by the Democrats). When will this very expensive Witch Hunt Hoax ever end? So bad for our Country. Is the Special Counsel/Justice Department leaking my lawyers letters to the Fake News Media? Should be looking at Dems corruption instead?”
Trump’s reaction and his lawyers’ absurd claims are both attempts to create a curtain of legal immunity around the president. It’s tempting to assume these ploys won’t work and that they’ll wither in the face of a strong case of illegalities put together by Mueller.
But we still don’t know much about the dimensions of any such case, while the wild assault from the White House on American legal norms continues, growing bolder by the hour.