Dispatch May 21, 2019

The Trump White House Believes the President Is Above the Law

The Trump White House believes the president is above the law.

This was always the clear subtext of their efforts to stop investigations into the administration, from President Donald Trump’s attacks on the Mueller probe to the current efforts to undermine congressional oversight.

Now, though, they’re saying it out loud, arguing that nobody—not Special Counsel Robert Mueller, not Congress, not anybody—has the right to investigate the president’s clear pattern of criminal behavior.

According to White House lawyer Emmett Flood, Mueller should not have been allowed to document the evidence of whether Trump committed crimes.

  • After the Department of Justice released the redacted version of the Mueller report, Flood wrote a letter to Attorney General Bill Barr taking issue with Mueller’s decision not to make a “traditional prosecutorial judgment” but to instead leave such decisions to Congress.
  • According to Flood, “Under general prosecutorial principles, and under the Special Counsel regulation’s specific language, prosecutors are to speak publicly through indictments or confidentially in declination memoranda.”
  • Flood argues that, because Mueller didn’t make a “traditional prosecutorial judgment,” he should not have even been allowed to write a report documenting the evidence that Trump obstructed justice.
  • Of course, as outlined in the report, Mueller concluded that he couldn’t make that “traditional prosecutorial judgment” largely because DOJ precedent prevented him from indicting a sitting president—prompting more than 900 former federal prosecutors to sign onto a letter saying Trump would have been indicted if he weren’t currently president.

Now, they’re arguing that Congress shouldn’t be allowed to even investigate whether Trump committed crimes.

  • The Trump administration’s argument for its unprecedented defiance of congressional subpoenas: Congress must have a “legitimate legislative purpose” to carry out its oversight duties.
  • This week, they applied it to the Russia investigation, arguing both in court and in a letter to House Judiciary Chairman Jerry Nadler that Congress has no right to investigate whether the president broke the law—a standard by which even the Watergate probe would have been illegitimate.
  • This argument isn’t just unconstitutional — it directly contradicts the very Justice Department guidelines that led Mueller to conclude he couldn’t indict the president, which identify Congress’s “investigatory powers” as one remedy for the DOJ’s inability to indict a sitting president.

The White House isn’t simply asserting executive privilege over documents. As Nadler replied, “The White House is making the outrageous claim that a president cannot be held accountable in any way to the American people.”

Congress must act now to show that the president is not above the law.