Answering questions raised in yet another leaked letter in Mueller probe

There’s yet another “bombshell” letter from the Mueller investigation in the New York Times this weekend, brought to you once again by Maggie Haberman and her band of would-be Trump prosecutors. The document in question was sent by Trump’s attorneys to Bob Mueller back in January and it deals with questions of whether or not the President can obstruct justice and if he can or should be made to answer questions before a grand jury. (You can read the full letter here, interrupted by numerous comments from Haberman and friends.) This has all the usual tongues wagging on cable news and it raises questions of how this letter was leaked, how much power Mueller actually has over the President and if one particularly juicy looking paragraph spells trouble for the President’s eldest son.


Taking them in order, let’s start with how the Times got the letter. I already heard a member of one panel on CNN this morning opining that it “probably” came from Trump’s team because he’s trying to make his case before the public and the letter “doesn’t look like” a legal court document. That seems unlikely on two counts. First of all, as the Times staff readily admits, there’s almost nothing in the arguments being made by Trump’s lawyers that we haven’t been hearing from them openly in interviews since the beginning. In fact, most of it can be found in Trump’s Twitter feed. The other reason I don’t think it came from Team Trump is how the origins of the letter are described in the Times article. When they get something from a leaker in the White House or Trump’s organization it’s almost always characterized as being from a White House official speaking on background or a “source familiar with the President’s thinking” or something like that. It lends more credibility to the story and works to spread the idea of chaos and dissent inside the White House.

This article merely describes the letter as having been, “obtained by the New York Times.” No indication of the source is offered. Since they don’t want to reveal their source, I’ll go ahead and say that my money is on the probability that it came from Mueller’s team yet again.


Second, we don’t need to waste much time on the assertions that the President’s lawyers were making. They say that the President can’t be compelled to testify and that he really can’t obstruct justice because he would, in effect, be obstructing himself. On the first count, as to whether or not the President could be subpoenaed to appear and testify, most competent experts I’ve heard talking about it admit that it remains an open question. It’s been attempted only rarely in our nation’s history and the results were mixed. Chief Justice John Marshall attempted to subpoena Andrew Jackson during the treason trial of Aaron Burr and Richard Nixon was similarly “invited” during the Watergate investigation. Jackson refused but sent along some documents. Nixon similarly declined but did wind up providing the Oval Office tapes which had been requested. When Ken Starr wanted Bill Clinton to testify before a grand jury, Clinton refused but negotiated a deal to do a private interview at the White House. There is no absolute answer to that question, but to date, nobody has successfully ordered a president to testify before a grand jury over their objections.

As to the question of whether or not the President can shut down the investigation, fire Mueller or if he’s even technically capable of obstructing justice, I’d refer you to this excellent analysis from Paul Mirengoff, who knows a thing or two on the constitutional law front. The bottom line is that the President can end a special investigation any time he likes (no matter how hideous the optics of that would be) and can similarly fire Mueller if he chooses. But saying that the President can’t obstruct justice because he would be “obstructing himself” is specious. The President is in charge of the Justice Department but he is not himself “justice.” He could indeed obstruct justice, particularly when the justice in question is aimed his way. (This is not in any way meant to say that he did. Just that in theory, he could.)


The final, juicy bit being picked up by a number of outlets this morning has to do with Donald Trump Jr. and that infamous meeting in Trump Tower with a Russian lawyer who either wanted to talk about adoption policy or shop some dirt on Hillary Clinton, depending who you believe. Mother Jones, in particular, is licking their chops over this bit. The letter states that President Trump, contrary to some of his previous public statements, “dictated a short but accurate response to the New York Times article on behalf of his son, Donald Trump, Jr.” This supposedly raises the possibility that Trump Jr. lied under oath when he said that his statements were his own and he hadn’t spoken to his father about it. But when Trump Jr. was asked about it during questioning, it wasn’t that clear-cut. Here’s the relevant portion of the testimony. (Emphasis added)

Q. The Washington Post has since reported that your father was involved in drafting your July 8th statement. Is that correct?

A. I don’t know. I never spoke to my father about it.

Q. Do you know who did draft that statement?

A. Well, there were numerous statements drafted with counsel and other people were involved and, you know, opined.

Q. To the best of your knowledge, did the President provide any edits to the statement or other input

A. He may have commented through Hope Hicks.

Q. And do you know if his comments provided through Hope Hicks were incorporated into the final statement?

A. I believe some may have been, but this was an effort through lots of people, mostly counsel.

Q. Did you ask him to provide any assistance with the statement?

A. No. She asked if I wanted to actually speak to him, and I chose not to because I didn’t want to bring him into something that he had nothing to do with.


So even if the President did, in fact, draft a “short but accurate response” to the New York Times about the meeting, that doesn’t mean that he dictated it to his son or gave it to him directly and Trump Jr.’s testimony seems vague at best on that question. You’d be hard pressed to get a conviction on that one, I think. And if the President himself lied about the source of his son’s statements on Twitter or in an interview, it’s not illegal for him to lie to the press. If it were, nearly every president in history would have wound up behind bars at some point or another. Yeah, that’s arguing semantics on the head of a pin, but we’re dealing with a question of whether or not perjury took place and such things matter.

At any rate, that’s the story of the newly leaked letter, at least as far as I can tell. There’s really not all that much new inside of it but at least it will keep the talking heads busy for the Sunday shows until something new comes along to distract us.

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