To read the reactions to the letter President Trump’s lawyers sent to Special Counsel Robert Mueller in January, one might think the constitutional order had melted down over the weekend. “For most of Donald Trump’s presidency, the specter of a coming constitutional crisis has loomed over the Russia investigation,” writes Jonathan Chait. “The newly leaked memo by Trump’s lawyers, obtained by the New York Times, suggests that such a crisis is not merely a likelihood, but that it has already begun.” Adds Ruth Marcus in the Washington Post, “[T]he implications are chilling. Trump asserts the right to terminate the Russia probe altogether. Or the investigation into his lawyer Michael Cohen. This is a scary vision of the power entrusted to any president, but especially this one.”
We are less alarmed. The letter is certainly a subpar piece of legal work in any number of respects. We wouldn’t recommend hiring either Jay Sekulow or John Dowd to represent you anytime soon. But the arguments they make within this letter are not at all novel. Indeed, Lawfare readers will find them quite similar to ones that Josh Blackman and Alan Dershowitz have been making for months—including on Lawfare—and that one of us has been arguing with for some time. What’s more, these are arguments we would fully expect the president to make under these unusual circumstances.
The president is, after all, being investigated for obstruction of justice for the manner in which he deployed his Article II powers to supervise investigations and investigators. Trump’s defense is an inelegant variant of “I didn’t do it, and even if I did, it wasn’t illegal.” Subjects of criminal investigations make this type of argument all the time. Yes, the letter stakes out a particularly permissive legal theory that allows not merely Trump’s underlying conduct but also gives him negotiating leverage with the prosecutor over all manner of conduct of the investigation. But what lawyer facing the business end of a white-collar criminal investigation in which prosecutors demand a sit-down interview with his truth-impaired client wouldn’t take up that baton?
Donald Trump has done a lot of alarming things with regard to the Russia investigation—reportedly pressuring Attorney General Jeff Sessions to rescind his recusal from the probe, attempting to dismiss Mueller, menacing Deputy Attorney General Rod Rosenstein, and most recently, issuing the Justice Department an outright demand to “look into” cooked-up allegations of politicized FBI “spying” on his campaign, to name only a few. It is jarring to see Trump’s lawyers fully articulate the bold legal theory to which they have alluded, for months, to reporters—and jarring to see the aggressiveness with which the theory is laid out. But it isn’t new. The Wall Street Journal reported in January that the Trump team was likely to point to In re: Sealed Case (Espy) as precedent. Trump’s lawyers have been floating the broad Article II theory since last summer. They’ve been sliming Comey since even before that. In and of itself, the letter is not cause for alarm.
In fact, the letter is interesting chiefly not as a legal document but as information about the Trump lawyers’ understanding of the state of the Mueller investigation on obstruction. One of the reasons attorneys normally protect product of this sort is that it offers a window into both the concerns of the lawyers who produced it and what they know factually about what the investigators have. This document does that—and we can peak through that window.
So let’s read the letter here not as legal analysts but as analysts interested in what we can glean about the Trump team’s thinking and about Mueller’s thinking. The document sheds more light on the former, because the Trump team produced it and the letter lacks an insider view of Mueller’s thinking and intentions. But the Trump team has more information than the public does about what Mueller is up to, so, at least to some extent, the document provides some insights on that too.
The first question worth considering when a document like this becomes public is who leaked it. Hours before the Times published the letter on Saturday, the president tweeted, “Is the Special Counsel/Justice Department leaking my lawyers [sic] letters to the Fake News Media?” While the president was quick to blame prosecutors for the leak, very little indicates that the special counsel’s office or the Justice Department had anything to do with it. As one of us has written at length, it is generally a good rule of thumb to look first to the defense, rather than the prosecution, when tracing leaks over the course of a criminal investigation. Consider also that Mueller’s office has been famously leak-resistant. And remember as well that while a prosecutorial leak of such a document would be a real impropriety, defense lawyers are allowed to dish to the media.
What’s more, there are hints that these letters were designed with ultimate public consumption in mind—most notably, Dowd and Sekulow’s decision to pepper their footnotes with citations not to legal authorities but to right-leaning media such as Fox News, the Wall Street Journal editorial page and National Review. (Fox, somewhat oddly, announced that it had “obtained exclusively” the letter—well after the Times had already published it—and the network presumably was not passed the document in a garage by Bob Mueller.) More to the point, disclosure of the letter gave the president’s lawyers a full news cycle in which their theory of the investigation and the obstruction case is the story—a full news cycle perfectly timed to include the Sunday talk shows this past weekend. The Trump team may have made these arguments to Mueller in this letter, but they made the same arguments the president’s legal team has been making in public for a while, so this was a chance to make an extended case to the public. In short, it is reasonable to assume, though we cannot be certain, that the letter is public because someone on or close to the president’s team wanted it to be public.
Second, when read carefully, the letter makes clear how asymmetrically the prosecution and the defense are looking at the investigation. News coverage of the letter has focused on the president’s defense concerning specific incidents—the Flynn meeting and the Comey firing, for example. But careful study of the Dowd-Sekulow account of Mueller’s interests suggests that the special counsel may be interested in something broader. Indeed, Mueller does not seem to be focused on any single instance of obstructive behavior on the president’s part. Rather, Dowd and Sekulow are responding to what look to be a broad swath of questions on a variety of instances that Mueller seemingly views collectively as raising obstruction concerns.
Here is how the president’s lawyers summarize Mueller’s interests:
In our conversation of January 8, your office identified the following topics as areas you desired to address with the President in order to complete your investigation on the subjects of alleged collusion and obstruction of justice:
- Former National Security Advisor Lt. Gen. Michael Flynn — information regarding his contacts with Ambassador Kislyak about sanctions during the transition process;
- Lt. Gen. Flynn’s communications with Vice President Michael Pence regarding those contacts;
- Lt. Gen. Flynn’s interview with the FBI regarding the same;
- Then-Acting Attorney General Sally Yates coming to the White House to discuss same;
- The President’s meeting on February 14, 2017, with then-Director James Comey;
- Any other relevant information regarding former National Security Advisor Michael Flynn;
- The President’s awareness of and reaction to investigations by the FBI, the House and the Senate into possible collusion;
- The President’s reaction to Attorney General Jeff Sessions’ recusal from the Russia investigation;
- The President’s reaction to Former FBI Director James Comey’s testimony on March 20, 2017, before the House Intelligence Committee;
- Information related to conversations with intelligence officials generally regarding ongoing investigations;
- Information regarding who the President had had conversations with concerning Mr. Comey’s performance;
- Whether or not Mr. Comey’s May 3, 2017, testimony lead [sic] to his termination;
- Information regarding communications with Ambassador Kislyak, Minister Lavrov, and Lester Holt;
- The President’s reaction to the appointment of Robert Mueller as Special Counsel;
- The President’s interaction with Attorney General Sessions as it relates to the appointment of Special Counsel; and,
- The statement of July 8, 2017, concerning Donald Trump, Jr.’s meeting in Trump Tower.
Writing on Lawfare, former White House counsel Bob Bauer has argued that while Trump’s motives may not be clearly obstructive in nature in any given instance, the president has succeeded over time in “drawing a certain picture of himself, which is neither pretty nor without consequence for his legal position. This self-portrait can be counted on to color unfavorably any assessment of his motives when more formal inquiries into his behavior are considered or take place.” In other words, while any one action by Trump might not meet the stringent standards required for a criminal obstruction charge, the sum of those actions viewed as an overall pattern can tell a different story.
This sequence of subjects—as reported by Trump’s lawyers—raises the interesting issue of what Mueller’s precise legal theory of obstruction looks like. Mueller’s investigation is, as we’ve said, a black box. But seeing the list of Mueller’s obstruction concerns laid out this way hints at one possible approach he might be taking: he may be investigating a series of overt acts in what he believes could be a conspiracy to obstruct justice. Under such a theory, each of the overt acts at issue might (or might not) be legal in and of itself, but may feed an unlawful objective: some kind of agreement to violate one or more obstruction statutes.
Third, the letter makes clear that the president’s lawyers believe that Mueller’s objective with regard to the obstruction investigation is ultimately to write a report. While the Washington Post has previously reported as much, Dowd and Sekulow spell this out: “It is our understanding that the reason behind the request for the interview is to allow the Special Counsel’s office to complete its report.” Put these two points together and we can hypothesize that Mueller may be working on an obstruction report that paints a broad picture of a pattern of presidential behavior with respect to the investigation. This picture includes, but is not limited to, the firing of James Comey as FBI director and Trump’s hint to Comey that he would like to see the end of the Flynn investigation. Other episodes are clearly important here as well. The key point is that from Mueller’s perspective, each episode is a tile in a larger mosaic. That mosaic, we can reasonably hypothesize, is the president’s broad interactions with federal law enforcement in the context of its investigation of L’Affaire Russe.
Fourth, while Mueller is looking at this larger mosaic—perhaps with the objective of writing a report on the gestalt pattern it describes—Dowd and Sekulow are trying to discredit each individual tile. Regarding the president’s discussion with Comey over the Flynn investigation, they make a multi-layered case using, as David Kris has written, several “hard to follow” fallback arguments about the existence of an investigation or Trump’s awareness of that investigation. They refuse to provide information on the president’s role in dictating a misleading statement to the Times about Donald Trump Jr.’s 2016 meeting at Trump Tower, writing, “This subject is a private matter with the New York Times.” While deceiving the press is not in itself a crime, focusing narrowly on this incident misses the broader context in which Mueller is probably interested in the Trump Tower statement: as one more tile in the larger mosaic of obstructive behavior, and one that—as it shows the president specifically directing his son to lie to the public—particularly reveals his corrupt intent.
Dowd and Sekulow are clearly concerned about the president’s interactions with Comey over Flynn. They spill a significant amount of ink trying to discredit Comey’s account of his meetings with the president, writing that the former FBI director “may or may not have misunderstood, misinterpreted or misremembered the President’s alleged comments” as to the Flynn investigation. They also suggest that Comey may be lying in the memo—or even about the fact of the memo: “The circumstance in which this memo arose — several months after the conversation and only after Mr. Comey was fired in disgrace — raises serious doubts about its veracity, if indeed it even exists.” (Ironically, we now know that the memo does exist, thanks to efforts by Trump-friendly congressional Republicans to make it public.)
Oddly, Dowd and Sekulow spend almost no time on certain other questions they flag as of interest to the investigators. For example, the letter does not address this question at all: “The President’s reaction to Attorney General Jeff Sessions’ recusal from the Russia investigation.” They have nothing to say about this one either: “The President’s reaction to Former FBI Director James Comey’s testimony on March 20, 2017, before the House Intelligence Committee.” And they leave these two critical question in a larger mosaic inquiry unaddressed as well: “The President’s reaction to the appointment of Robert Mueller as Special Counsel” and “The President’s interaction with Attorney General Sessions as it relates to the appointment of Special Counsel.” In other words, while they seem concerned with establishing the legal propriety of a few specific presidential actions, and they assert generally the prerogative of the president to supervise the Justice Department and federal investigations, they are content—in this letter, at least—to leave many of the tiles unsullied. The implication seems to be that they’ll be okay if they just bloody Comey’s nose enough.
Fifth, Trump clearly has a problem with the intelligence community chiefs, and it may be a big problem. Recall the Washington Post’s reporting that the president asked the director of national intelligence, Dan Coats, and the director of the National Security Agency, Adm. Mike Rogers, to publicly deny any collusion between Russia and the Trump campaign, and that he also asked whether Coats could pressure Comey to back off from the Flynn investigation. Yet his lawyers are unable to muster anything exculpatory to say on this point.
Here is everything the letter says on the subject:
you had expressed a desire for information related to conversations with intelligence officials generally regarding ongoing investigations. The intelligence chiefs themselves have already very clearly testified on the subject before Congress. In the words of Director Rogers, “In the three-plus years that I have been the director of the National Security Agency, to the best of my recollection, I have never been directed to do anything I believe to be illegal, immoral, unethical or inappropriate, and to the best of my recollection during that same period of service I do not recall ever feeling pressured to do so.” Director Coats testified in a very similar vein: “In my time of service, which is interacting with the President of the United States or anybody in his administration, I have never been pressured — I have never felt pressured — to intervene or interfere in any way with shaping intelligence in a political way or in relation to an ongoing investigation.”
Note that the president’s lawyers are not denying the allegations. They do not say that Trump didn’t ask Rogers or Coats to anything “illegal, immoral, unethical, or inappropriate.” The most they say is that these men were not “directed” to intervene and did not feel “pressured” to do so. If they could have said something stronger, they almost surely would have done so. This likely indicates that Mueller has information, as the Post reported, about Trump seeking to induce intelligence community leadership to intervene in the Russia investigation.
Sixth, the letter shows that there is a considerable amount of posturing going on when the White House complains about the supposedly roving and expanding scope of the investigation. Dowd and Sekulow write, “We agreed [with Mueller’s office] on the parameters of the inquiry and that if anything changed, the Special Counsel would notify us before proceeding.” This suggests that the president’s legal team was aware of the jurisdictional boundaries in which the investigation was taking place—despite Trump’s recurrent complaints of an out-of-control “witch hunt.” At least as of January, the president’s lawyers were comfortable with those boundaries and believed that they would receive a heads-up as to any expansion of the scope of Mueller’s inquiry.
Finally, the letter deepens the mystery of Deputy Attorney General Rod Rosenstein’s involvement in the events surrounding the Comey firing. The letter states, “As you also know, far from merely signing off on a Presidential decision or taking a weak or indirect action indicating a tacit or pressured approval, Mr. Rosenstein actually helped to edit Mr. Comey’s termination letter and actively advised the President accordingly” (emphasis in original). The New York Times recently reported this fact. But as with the Post’s reporting on Mueller’s intention to write up his findings, seeing the information in direct correspondence between the president’s lawyers and the special counsel’s office tends to strengthen one’s confidence in it.
So, what to make of all of this? For one thing, the letter is a reminder to be careful about drawing firm conclusions or assuming that the public knows more than we really do. Our knowledge of the Mueller investigation remains hazy. There are still relatively few solid data points regarding the probe, apart from its public activities, and almost all of these are indirect—the accounts of investigative witnesses or subjects or their lawyers. While this document sheds some new light, its information is also indirect, and it was probably made public because someone in the Trump sphere wants the public to imbibe the particular story it tells. So don’t make too much of it.
That said, there are several broad conclusions it tentatively suggests. In January, our colleague Jack Goldsmith, ruminating on why Rosenstein has not recused from supervising the Mueller probe, hypothesized that perhaps “Mueller is not actually investigating the president for obstruction” and noted that “there has been no official confirmation that Mueller is investigating obstruction by the president.” This document, while still not official confirmation, provides pretty compelling evidence that there is an obstruction investigation, that it is serious, and that it is looking at several different incidents. The letter also gives a sense of the investigation’s focus—and of what aspects most concern the president’s counsel, and where they do and do not think they have strong arguments to make. That is not a lot to go on. But it is something.
All told, don’t panic about this letter. Instead, read it carefully.