The most insightful approach to this situation I’ve read in the last 18 or so months.
How Trump Takes On Obstruction
Focus on the threat to the powers of the presidency, not the president personally.
Kimberley A. Strassel
April 26, 2018 7:19 p.m. ET
President Donald Trump speaks to reporters at the White House, April 24.Photo: Pool/Getty Images
By
Kimberley A. Strassel
President Trump vociferously protests his innocence as Robert Mueller finishes the first year of his Russia investigation. Still, the endless Tweet bleats of “PHONY” and “WITCH HUNT” are doing little to help his cause.
The question is why this high-energy president seems to have fallen for the media claim that his only proactive course is to fire Mr. Mueller. It isn’t. There are two very bold actions the Trump White House could take to reset the Russia dynamic. Both would aid Mr. Trump’s presidency and serve the executive branch and the public in the longer term.
The first is an abrupt overhaul of the president’s legal team and strategy. Mr. Trump has talented lawyers, but not ones skilled at confronting the threat at hand. They continue to fret over his personal liability, when the real threat is to the Constitution—to this presidency and every future one. Mr. Mueller is by all accounts now focused on obstruction of justice. Mr. Trump needs constitutional powerhouses who can swiftly take that issue off the table.
Constitutional lawyer David Rivkin in December argued on these pages that a president’s exercise of the powers of his office cannot legitimately be construed as obstruction of justice. Among those powers are the right to direct law enforcement and to fire executive-branch appointees at will. Whether or not Mr. Trump’s conversations with former Federal Bureau of Investigation Director James Comey, or his firing of Mr. Comey, were wise, Mr. Trump was exercising rightful powers. If Congress believes he abused his office, it has the power to impeach. If Congress had the authority to criminalize the exercise of presidential power, or the judiciary to question a president’s motives, the separation of powers would be severely threatened.
Already we are seeing the obstruction narrative threaten other core powers. We are now told it is obstructionist for a president to use his pardon power, as Mr. Trump did with Joe Arpaio and Scooter Libby. We are told that Mr. Trump is obstructing justice by ordering the attorney general to cooperate with congressional document demands. And Team Trump needs to understand that the mere specter is enough to constrain the presidency; Mr. Mueller doesn’t need to bring a charge.
Which is why the president needs a team that focuses on the Constitution, decoupling its defense of Mr. Trump’s presidential powers from his personal legal risk. Example: The president’s lawyers are currently resisting a Mueller interview for fear the president might perjure himself. The correct grounds for refusing should be that the president will not parlay with any special prosecutor engaged in an unconstitutional obstruction probe. He needs a team that immediately goes to federal court to obtain a declaratory judgment that presidents cannot obstruct justice while exercising core powers. This legal clarification is crucial, to pre-empt any Mueller charge or even report. It’s also necessary to make clear that should the House impeach on obstruction, it will not be doing so on grounds that the president violated criminal law.
Simultaneous to legal overhaul, the White House should immediately order the declassification (with redactions for sources and methods) of every underlying document in the Justice Department and FBI counterintelligence probe, including any paper at the State Department, Central Intelligence Agency and any other agencies that were involved. Everything. The Foreign Intelligence Surveillance Act warrants. Emails. Texts. The interviews with dossier author Christopher Steele. The story of how exactly the FBI came into possession of info about Trump aide George Papadopoulos. Details of any as yet undisclosed FBI spying on the Trump campaign.
Mr. Trump’s advisers have warned him off this transparency, on the grounds—yet again—that such a release might be construed as obstructing the Mueller probe. To repeat: The president has ultimate authority over classification, and no exercise of that constitutional power can be obstruction. Even the few documents the public has seen—the Comey memos, the Peter Strzok-Lisa Page texts, a glimpse of one FISA warrant—have created a compelling case that the FBI and Justice Department in 2016 abused their power.
Yes, there are risks of a worrisome declassification precedent. But they are outweighed by the gravity of the threat to the executive branch and the potential loss of faith in law enforcement. The nation has the right to the full story now—to understand better how we ever got to a special counsel, and to put Mr. Mueller’s ultimate findings in context.
The media and anti-Trump elites have created a false choice: that Mr. Trump must either sit back and take it, or go on a firing rampage. He has better options. He can define the terms of this debate and defend the executive branch. And he can enlighten the country. But his time for doing so productively is growing very short.
Write to kim@wsj.com.
Appeared in the April 27, 2018, print edition.
How Trump Takes On Obstruction
Focus on the threat to the powers of the presidency, not the president personally.
Kimberley A. Strassel
April 26, 2018 7:19 p.m. ET
President Donald Trump speaks to reporters at the White House, April 24.Photo: Pool/Getty Images
By
Kimberley A. Strassel
President Trump vociferously protests his innocence as Robert Mueller finishes the first year of his Russia investigation. Still, the endless Tweet bleats of “PHONY” and “WITCH HUNT” are doing little to help his cause.
The question is why this high-energy president seems to have fallen for the media claim that his only proactive course is to fire Mr. Mueller. It isn’t. There are two very bold actions the Trump White House could take to reset the Russia dynamic. Both would aid Mr. Trump’s presidency and serve the executive branch and the public in the longer term.
The first is an abrupt overhaul of the president’s legal team and strategy. Mr. Trump has talented lawyers, but not ones skilled at confronting the threat at hand. They continue to fret over his personal liability, when the real threat is to the Constitution—to this presidency and every future one. Mr. Mueller is by all accounts now focused on obstruction of justice. Mr. Trump needs constitutional powerhouses who can swiftly take that issue off the table.
Constitutional lawyer David Rivkin in December argued on these pages that a president’s exercise of the powers of his office cannot legitimately be construed as obstruction of justice. Among those powers are the right to direct law enforcement and to fire executive-branch appointees at will. Whether or not Mr. Trump’s conversations with former Federal Bureau of Investigation Director James Comey, or his firing of Mr. Comey, were wise, Mr. Trump was exercising rightful powers. If Congress believes he abused his office, it has the power to impeach. If Congress had the authority to criminalize the exercise of presidential power, or the judiciary to question a president’s motives, the separation of powers would be severely threatened.
Already we are seeing the obstruction narrative threaten other core powers. We are now told it is obstructionist for a president to use his pardon power, as Mr. Trump did with Joe Arpaio and Scooter Libby. We are told that Mr. Trump is obstructing justice by ordering the attorney general to cooperate with congressional document demands. And Team Trump needs to understand that the mere specter is enough to constrain the presidency; Mr. Mueller doesn’t need to bring a charge.
Which is why the president needs a team that focuses on the Constitution, decoupling its defense of Mr. Trump’s presidential powers from his personal legal risk. Example: The president’s lawyers are currently resisting a Mueller interview for fear the president might perjure himself. The correct grounds for refusing should be that the president will not parlay with any special prosecutor engaged in an unconstitutional obstruction probe. He needs a team that immediately goes to federal court to obtain a declaratory judgment that presidents cannot obstruct justice while exercising core powers. This legal clarification is crucial, to pre-empt any Mueller charge or even report. It’s also necessary to make clear that should the House impeach on obstruction, it will not be doing so on grounds that the president violated criminal law.
Simultaneous to legal overhaul, the White House should immediately order the declassification (with redactions for sources and methods) of every underlying document in the Justice Department and FBI counterintelligence probe, including any paper at the State Department, Central Intelligence Agency and any other agencies that were involved. Everything. The Foreign Intelligence Surveillance Act warrants. Emails. Texts. The interviews with dossier author Christopher Steele. The story of how exactly the FBI came into possession of info about Trump aide George Papadopoulos. Details of any as yet undisclosed FBI spying on the Trump campaign.
Mr. Trump’s advisers have warned him off this transparency, on the grounds—yet again—that such a release might be construed as obstructing the Mueller probe. To repeat: The president has ultimate authority over classification, and no exercise of that constitutional power can be obstruction. Even the few documents the public has seen—the Comey memos, the Peter Strzok-Lisa Page texts, a glimpse of one FISA warrant—have created a compelling case that the FBI and Justice Department in 2016 abused their power.
Yes, there are risks of a worrisome declassification precedent. But they are outweighed by the gravity of the threat to the executive branch and the potential loss of faith in law enforcement. The nation has the right to the full story now—to understand better how we ever got to a special counsel, and to put Mr. Mueller’s ultimate findings in context.
The media and anti-Trump elites have created a false choice: that Mr. Trump must either sit back and take it, or go on a firing rampage. He has better options. He can define the terms of this debate and defend the executive branch. And he can enlighten the country. But his time for doing so productively is growing very short.
Write to kim@wsj.com.
Appeared in the April 27, 2018, print edition.
