Via Bob Bauer writing for Lawfare
When President Trump first tweeted his hint of “tapes,” he might have been just surrendering to his social media impulses. He did not have a lawyer at the time, or one he publicly admitted to having hired. Now a month later, the newest tweet, denying that he has tapes, comes when he is fully represented. Only days ago, a member of his new legal team, Jay Sekulow, told Chris Wallace of Fox News that he was entirely comfortable with the President’s tweeting about the case. The President, able to reach “107 million” Americans, “has changed the way engagement [sic] goes in…”
What is the right conclusion to draw from this sequence of events—that President Trump’s lawyers have failed to control him but must carry on as if unconcerned, or that the president and his team are innovating with the aid of tweets an unprecedented constitutional defense against investigation and prosecution?
It cannot pass notice that the President’s lawyers have showed up recently to stress his constitutional powers to act as he did in firing Mr. Comey. Mr. Jay Sekulow told Wallace that the President had the “inherent authority” to take the action. “He’s the Commander in Chief” who “gets to make the decision,” and Mr. Sekulow insisted that it was not an action for which Mr. Trump can be indicted. In another interview, with CBS’s John Dickerson, Sekulow was more expansive in his claims and argued the President’s immunity may extend to investigation. “The President cannot be investigated, or certainly can not be found liable for engaging in an activity he clearly has power to do under the Constitution.”
Just how far Sekulow intended to take this theory about immunity from investigation was unclear. He plainly meant that, at a minimum, the president could not be investigated for an action recommended by the senior departmental officials. This is highly dubious: a president could always arrange for a recommendation, or for the appointment of the senior official who would give it to him. In any event, Mr. Sekulow, in raising the prospect of immunity from investigation, is breaking fresh ground.
Sekulow’s position on presidential immunity from indictment and prosecution is based on Office of Legal Counsel opinions from 1973 and 2000. I have suggested here why these opinions are wrong. But Mr. Sekulow has moved beyond OLC in contending that these supposed constitutional protections may shield a sitting president from even investigation, at least where he is acting on DOJ recommendations. OLC assumed that a grand jury could collect and preserve evidence that could be used in a prosecution once the president left office. Mr. Trump’s legal team is putting this in question.
It is in relation to these sweeping constitutional claims that the President’s tweeting should be read and then evaluated as a component of his legal strategy. The time has come to resist the temptation to view them, when used in his legal defense, as mere proofs of the president’s volatility. Already there is speculation that the latest tweet read more like text shaped, or at a minimum reviewed and edited, by lawyers. He is clear on the point: “I did not make, and do not have, any such recordings.” Missing is the standard exclamation mark.
Moreover, the tweet did not come out of the blue; it was not provoked by a news event. The President was issuing a response to a question posed by a congressional investigating committee, and he was bringing that answer within the requested date for submission. This request, not an early morning urge, explains the tweet, which came mid-day. The President, if he has lawyers for any reason, surely counts on them to review a reply for information from a congressional committee.
In fact, Mr. Sekulow told John Dickerson that the President himself would provide that reply: “I know the President is going to address [the question about the tape] in the week ahead.” It did not have to come in that form: the President’s lawyers had the option to send a letter or issue a statement with the same denial. This would have been the conventional—and, many if not most lawyers would insist, less risk-laden—approach. Instead the President tweeted. Lawyers defending public officials usually advise them to let the lawyers do the talking. Not, apparently, Mr. Trump’s lawyers, and they may have their reasons.
This choice of the tweet, after a series of other tweets on this subject of the Russia probe, can be understood as a clue to how the President plans on advancing an aggressive constitutional position. He is speaking to the “107 million”: he is conditioning them to his arguments as a Commander in Chief whose authority is being challenged by his political adversaries. The tweet about the tapes was preceded within hours by others that echoed the familiar charge that the whole investigation is a “big Dem HOAX!” He questioned the charges of Russian hacking, asking his followers why, if there were such intrusions, the Obama Administration did not stop them. He brought up former DHS Secretary Jeh Johnson’s testimony to suggest, falsely, that Johnson had concluded that the very “collusion” under investigation by the Special Counsel never occurred. Without a matter to investigate, he implied in these tweets, there could be no reason other than partisanship for any charge of obstruction.
As Mr. Trump tweets out this familiar narrative, his lawyers apparently stand ready to build the complementary legal case that the threat to the President is well outside constitutional bounds. At the heart of this consolidated political and constitutional defense is the claim that the investigation is motivated by a refusal to accept the people’s choice in 2016, and that the President’s adversaries are trying to bring him down by challenging his “inherent authority.” An antagonistic Establishment, whose members include the former FBI Director and Mr. Trump’s chosen Deputy Attorney General, is fighting back against the man chosen in a historic election to shake up Washington. The true challenge to the constitutional order is being mounted against the White House, not from within it.
There has been reason to believe for some time that the President’s tweets might have more significance than as mere outlets for his frustrations. It seemed that he was keeping open the possibility of moving against the criminal investigation. This was before he hired lawyers. Now he has them. One of them has now stated publicly that Mr. Trump while president might not be subject to investigation. Now, too, we see that the President and his lawyers have decided that he will continue to speak—and in particular to tweet—in his own defense. His personal impulses, political strategy, and legal defense may be fitting more closely together than once supposed.