"Well, when the President does it, that means its not illegal."--Richard Nixon to David Frost
The NYT has the memo from Trump's lawyers (Dowd and Sekulow) to Mueller. Nick Akerman was polite to call its legal reasoning "substandard." It contains no legal reasoning at all, just assertions clearly aimed, not at Mueller, but at Trump's base.
It remains our position that the President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.1Nevertheless, the President’s strong desire for transparency indicated the need to obtain an honest and complete factual report from the Special Counsel, which would sustain and even benefit the Office of the President and the national interest throughout his time in office. Thus, full cooperation was in order, and was in fact provided by all relevant parties.(Yes, I have belatedly realized the argument is "The law, c'est moi." How, otherwise, could the President "obstruct himself"?) That footnote at "1" is striking. Here it is:
It is not necessary to go so far as to contend that no conduct by a President could ever amount to obstruction of justice. All that is necessary here is to understand that the set of facts alleged in this situation cannot amount to obstruction of justice. We also note that, a President has no constitutional authority to bribe witnesses or suborn perjury and any such conduct would of course be subject to the relevant statutes. But such conduct has not even remotely been alleged against the President. And, we leave aside for now the well-established rule that a sitting President cannot be indicted, as opposed to impeached, for any crime (A Silting [sic] President ‘s Amenability to Indictment and Criminal Prosecution, Op. O.L.C. (Oct. 16, 2000)). In sum, it remains clear that the President’s exercise of his constitutional authority at issue here — to terminate an FBI Director and to close investigations — cannot constitutionally constitute obstruction of justice.Of course it can, because it depends on the intent. As Akerman points out, if he advises a client to take the 5th, that's legal. But if he does so intending the client to hide Akerman's criminal liability, that's obstruction of justice (this is why, in a roundabout way, Sessions had to recuse himself from the Russia investigation). The question is not the power, but the reason. There is also the matter of what has been alleged against the President, or even charged. Nobody knows what that is (or even if a sealed indictment has been issued), so this footnote is all pettifoggery and persiflage (ancient legal terms, hem-hem).
We move on:
We express again, as we have expressed before, that the Special Counsel’s inquiry has been and remains a considerable burden for the President and his Office, has endangered the safety and security of our country, and has interfered with the President’s ability to both govern domestically and conduct foreign affairs. This encumbrance has been only compounded by the astounding public revelations about the corruption within the FBI and Department of Justice which appears to have led to the alleged Russia collusion investigation and the establishment of the Office of Special Counsel in the first place.2The Special Counsel acknowledged that he was aware of and understands this burden and, accordingly, has committed to expedite his effort.If you've been paying attention you know DOJ regulations don't allow a sitting President to be indicted because it will be a "distraction" for the Executive (they referenced it above, one of the few vaguely legal references in the memo). Echoes of that reasoning are intentional; and weak; very, very weak.
And the point of this drill (which gets more tedious as it gets into the evidentiary weeds)? Funny you should ask:
While we have confidence that you will come to the same conclusions set forth below, if you conclude a further investigation is warranted, we respectfully request to be advised and be provided the opportunity to raise our statutory and Constitutional objections with the Acting Attorney General.
In plain English: you play our rules, or we're gonna tell Mommy! Which is funny, because the King's minions are here asserting the King can do whatever he wants to do! So what gives?
They got nothin', in other words. This is not even vaguely in the form of a legal memorandum, or even a legal argument. It is not intended for lawyers but for non-lawyers. It is not intended for legal professionals of any kind (FBI special agents, investigators, etc.). It is intended for the viewers of Fox News, without the incendiary language and conspiracy theories that would give the game away completely. This is farce, and it is coming from the White House pretending to be Very Serious People.
The rest of the memo rehashes, in detail and tedium, the argument that, when the President does it, it's legal; and presumably you can't inquire into his intent (mens rea, as the lawyers say), either, so King's X!
I could say more, but honestly, these people are clowns. Someone noted recently (Avenatti, if memory serves) how bad Trump's lawyers are, that Trump is down to 3rd rate talent because no one will touch him with a club. Mueller lined his bird cage with this memo, after putting a copy in a file. The legal argument here isn't shocking, it's paltry. Trump isn't even acting the part of mad King George; he's just squirting squid ink so he can get away, except he's not a squid, and the law has a very firm grasp on him. If Mueller has the goods on Trump, he can get his witnesses to testify whether Trump pardons them or not (and some have already reached plea agreements, so too late there!). If there is a sealed indictment, or will be one anytime soon, Trump's goose is cooked. And he'll never know either way, until the day after his last day in office.