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OpEdNews Op Eds    H2'ed 6/12/18

Dissecting Trump's Efforts to Place Himself Above the Law

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"Nobody is above the law," Donald Trump declared during the 2016 campaign. But as special counsel Robert Mueller zeroes in on him, the president is carving out an exemption for himself. Trump and his attorneys are claiming absolute power for the president.

Trump's attorney and mouthpiece Rudy Giuliani told HuffPost that Trump could not be indicted even if he "shot" former FBI director James Comey in the Oval Office.

A confidential January 29, 2018, memo written by Trump lawyers John Dowd and Jay Sekulow contends that Trump essentially is above the law. As the French King Louis XIV said, "L'etat c'est moi" (I am the state). All political power resides in the king. Trump's attorneys are arguing that the president is immunized against legal consequences for his actions.

"Unitary Executive" Theory of Presidential Power

Another Trump attorney, Marc Kasowitz, also wrote a confidential memo to Mueller, on June 23, 2017. It advocates the "unitary executive" doctrine, a radical rightwing theory of extensive presidential powers. "As a constitutional matter," Kasowitz wrote, "the President also possesses the indisputable authority to direct that any executive branch investigation be open or closed because the Constitution provides for a unitary executive with all executive power resting with the President."

Trump is not the first president to make sweeping claims of executive power.

In 2000, Supreme Court Justice Samuel Alito told the conservative Federalist Society that the Constitution "makes the president the head of the executive branch, but it does more than that. The president has not just some executive powers, but the executive power -- the whole thing."

Shortly after 9/11, legal mercenary John Yoo saw to it that George W. Bush included "unitary executive" in several of his signing statements, purporting to limit the parameters of statutes Congress had enacted. Yoo also made the astounding claim that a president could legally crush the testicles of the child of a person being interrogated. Supreme Court Justice Clarence Thomas used the phrase "unitary executive" in his dissent in Hamdi v. Rumsfeld, a case in which the high court upheld due process rights for US citizens held as enemy combatants.

The Dowd-Sekulow memo makes a series of assertions of unbridled executive power. It says that a president should not have to submit to an interview by the special counsel; he cannot be compelled to testify in court; he can't commit the crime of obstruction of justice, and even if he could, he can't be criminally charged; he has the power to fire the special counsel; and he can grant himself a presidential pardon for any conceivable crimes.

That memo is a desperate attempt to avoid subjecting Trump to Mueller's questioning or a grand jury subpoena. His lawyers know it would be a legal minefield as the president has a compulsive habit of contradicting himself.

Must the President Submit to a Mueller Interview?

Trump's legal eagles argue that the president is protected by executive privilege against being compelled to talk to Mueller. Moreover, they contend the documents he has provided and witnesses he has made available for depositions cover everything Mueller would ask about, so there's no need for the president to personally converse with the special counsel.

The hole in their argument is that in order to establish whether Trump engaged in obstruction of justice, Mueller has to determine whether the president had the intent to obstruct the FBI investigation. That decision can best be made by speaking directly to Trump.

On June 3, Giuliani revealed the real reason Team Trump fears a Mueller interview of the president. "This is the reason you don't let this president testify in the special counsel's Russia investigation," Giuliani told George Stephanopoulos on ABC's "This Week," adding, "Our recollection keeps changing, or we're not even asked a question and somebody makes an assumption."

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Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers, and a member of the National Advisory Board of Veterans for Peace. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. See  (more...)

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