During an interview on Friday’s edition of Fox & Friends, one of President Trump’s attorneys, Jay Sekulow, argued the president should be immune from any and all questioning by investigators.
“The idea that a president could be asked questions about — first of all, his Article II authority — it’s counter to the constitution,” Sekulow said. “I mean, this whole notion that a president should be put in a place, especially in the scope of this investigation, to be questioned about ‘why you took actions against, let’s say, the former FBI director,’ or whatever it might be…”
“Here’s the problem — the problem is not, ‘can the president answer the questions?’ Of course the president could answer the questions,” Sekulow continued. “The question is, ‘should under these circumstances the president answer the questions.’ And you are now setting a precedent not just for this president but for the presidency. And my concern quite frankly in all of this is this is Article II core constitutional power of the presidency, and to allow questioning to go on with regard to decisions you make as president — I think it’s not only absurd and outrageous, it makes no sense under the way our government is set up. Because if that was the case, then any U.S. attorney that had any questions about any president’s policy could say, ‘you know, I’m gonna subpoena him and ask him some questions about that.'”
— Aaron Rupar (@atrupar) August 10, 2018
Article II of the constitution confers “executive power” on the president. Sekulow’s argument is that Article II grants the president the power to fire federal officials, such as former FBI Director James Comey, without any concerns about obstructing justice.
Sekulow’s argument is a controversial one. Earlier this year, Duke law professor Samuel Buell told the New York Times that he doesn’t think the constitution gives the president the power to fire officials if the president’s intent is to cover up crimes.
“This becomes a kind of ‘the king can do no harm’ argument, which just isn’t consistent with American criminal law or constitutional law,” Buell said.
It’s also worth remembering that the American system of government was set up in opposition to kings. This passage from James Madison’s Federalist 51 came up often during the House Judiciary Committee’s Watergate hearings:
If men were angels no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
Sekulow is also overlooking that part of special counsel Robert Mueller’s investigation pertains to events that occurred before Trump became president — namely, his campaign’s relationships with Kremlin agents during the campaign.
Other public statements by the president’s lawyers suggest their strategy is coalescing around the concept that the president has broad authority to fire officials without concern for obstructing justice. Earlier this week, Sekulow and Trump’s other attorney handling the Russia investigation, Rudy Giuliani, indicated that questions about obstruction of justice are off the table if Trump ever sits for an interview with special counsel Robert Mueller.
Axios, which spoke with Giuliani this week, reported that “[t]here are two topics the president’s lawyers want to rule out in order to agree to a Trump sit-down with Mueller: Why Trump fired FBI Director James Comey, [and] what Trump said to Comey about the investigation of former national security adviser Michael Flynn.”
And yet the president’s defense strategy could come undone at the hands of the client himself. An interview Sekulow did on Sunday’s edition of This Week alluded to another reason why he and Giuliani have worries about Trump sitting down with Mueller — Trump has a hard time telling the truth, even to people who are trying to help him. Pressed on false statements he made last summer about Trump’s role in dictating a false statement for his eldest son about a meeting between Trump campaign officials and Kremlin-connected Russians, Sekulow suggested Trump lied to him about it.
“As my colleague Rudy Giuliani said, I had bad information at that time,” Sekulow said.
When he hasn’t been negotiating with Mueller through the media, Sekulow and Giuliani have been previewing another possible defense: collusion is not a crime.