Editor’s Note: Caroline Polisi is a federal and white collar criminal defense attorney in New York and is Of Counsel at Pierce Bainbridge. She frequently appears on CNN as a legal analyst and is an anchor at the Law & Crime Network, providing live legal analysis on high profile court cases. Follow her on Twitter: @CarolinePolisi. The views expressed in this commentary are her own.
Monday morning, President Trump tweeted, “I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?” Among other tweets, this latest outburst spurs talk of pardons at a time when the New York Times has published a 20-page letter to special counsel Robert Mueller from Trump’s lawyer Jay Sekulow and former lawyer John Dowd.
With this stunning missive now a part of the public record, we can add Trump’s misleading, “dictated” statement about his son’s now infamous June 9, 2016 Trump Tower meeting with admitted Russian “informant” Natalia Veselnitskaya to the dizzying list of obstructionist behavior he’s displayed while in office. This obstructionist behavior includes, but is not limited to, his asking then-FBI Director James Comey for a loyalty pledge, urging him to drop his investigation into former national security adviser Michael Flynn, and his subsequent firing of Comey, citing a controversial memorandum written by Deputy Attorney General Rod Rosenstein, which we now know was merely a pretext. The reasoning stated in the memorandum – Comey’s handling of the Hillary Clinton email scandal – was quickly belied by Trump’s bald-faced assertion on national television that the actual reason he fired Comey was, quite simply, “this Russia thing.”
We’ve known for a while that Trump likely had some involvement in drafting the July 8, 2017 press statement that said that that the participants in the meeting had “primarily discussed a program about the adoption of Russian children,” when – in fact – it was later revealed by Trump Jr. in his testimony before the Senate Judiciary Committee that he went forward with the meeting because he was told that “someone had official documents and information that would incriminate Hillary Clinton and her dealings with Russia and that the information would be very useful to the campaign.” When asked if he knew if President Trump had provided any “edits” to or “input” on the statement, Donald Jr. said “(h)e may have commented through Hope Hicks.”
This latest revelation, admitted to by Trump’s own legal team in their letter to Mueller, proves that the President lied to the press. There is no criminal statute prohibiting such behavior (just as there is no crime associated with lying on Twitter). But those lies do inform Robert Mueller’s investigation insofar as they are evidence of state of mind, which is a key element in any criminal prosecution.
And this is where the leaked letter sheds important insight into Trump’s legal team’s strategy when dealing with the special counsel – it isn’t a legal strategy at all, but actually a PR strategy, with an eye toward the possible end result of impeachment proceedings.
We already know that Robert Mueller is operating under the Department of Justice’s Office of Legal Counsel stance that a sitting president cannot be indicted, which means that the investigation, as it pertains to the President, will lead to a report by the special counsel, which may or may not lead to impeachment.
This is where it is important to remember that criminality is not impeachability, and vice versa. If you drew a Venn diagram, with one circle representing criminality and the other representing impeachable offenses, you would have a lot of non-overlapping space.
And, cynical though it may be, Gerald Ford was correct when he famously said in 1970 amid the Nixon era that an impeachable offense “is whatever a majority of the House of Representatives considers it to be at a given moment in history.”
Trump’s legal team, as illustrated through their often-strained logic presented in this letter, is using this political reality to its advantage.
It is clear that the President’s legal team is not actually concerned with whether or not the President’s actions meet the requirements of an obstruction of justice charge. So unconcerned, in fact, that they actually cited an outdated obstruction statute in their hand-delivered letter to special counsel Robert Mueller.
Adding to all of this news Trump’s recent pardoning spree, which in my opinion is an undeniable message to Michael Cohen and others that Trump will bail them out of federal crimes (like lying to federal investigators) if the going gets rough, and you have a pretty solid case for obstruction of justice. A pretty solid legal case, that is. But, for the reasons stated above, that may be largely irrelevant, practically speaking.
The big takeaway from that letter (and from Rudy Giuliani’s recent medial blitz) is that his legal team is ultimately gearing up not for a legal battle to be waged in court (although they may have to duke out in court the issue of whether or not a sitting president can be subpoenaed to testify before a grand jury, and I predict they will lose), but an impeachment battle waged in Congress. And they are therefore starting by waging the war in the court of public opinion. After all, who do you think leaked the letter to the Times?
Due to an editing error, a sentence in an earlier version of this op-ed used “Nixon impeachment” instead of “Nixon era” in referring to Gerald Ford’s statement in 1970. The piece has been updated with the correct word.