WASHINGTON — President Trump’s lawyers have asserted that he cannot be compelled to testify and argued in a confidential letter that he could not have committed obstruction because he has unfettered authority over all federal investigations.
The lawyers have for months waged a quiet campaign to keep Special Counsel Robert Mueller from trying to force Trump to answer questions about whether he obstructed justice in the Russia investigation.
The 20-page letter to Mueller contends that the president cannot illegally obstruct any aspect of the investigation into Russian election meddling because the Constitution empowers him to, “if he wished, terminate the inquiry, or even exercise his power to pardon.”
A copy of the letter, which was hand-delivered to the special counsel’s office in January, was obtained by The New York Times.
Trump’s lawyers fear that if he answers questions, either voluntarily or in front of a grand jury, he risks exposing himself to accusations of lying to investigators, a potential crime or impeachable offense.
Trump’s broad interpretation of executive authority is novel and is likely to be tested if a court battle ensues over whether he could be ordered to answer questions. It is unclear how that fight, should the case reach that point, would play out.
A spokesman for Mueller declined to comment.
“We don’t know what the law is on the intersection between the obstruction statutes and the president exercising his constitutional power to supervise an investigation in the Justice Department,” said Jack Goldsmith, a Harvard Law School professor who oversaw the Justice Department’s Office of Legal Counsel during the Bush administration. “It’s an open question.”
The letter, which was written by two of the president’s lawyers at the time, John M. Dowd and Jay A. Sekulow, offers a rare glimpse into one side of the high-stakes negotiations over a presidential interview.
Though it is written as a defense of the president, the letter recalls the tangled drama of early 2017 as the new administration dealt with the Russia investigation.
It also serves as a reminder that in weighing an obstruction case, Mueller is reviewing actions and conversations involving senior White House officials, including the president, the vice president, and the White House counsel.
The letter also lays out a series of claims that foreshadow a potential subpoena fight that could unfold in the months leading into November’s midterm elections.
“We are reminded of our duty to protect the president and his office,” the lawyers wrote, making their case that Mueller has the information he needs from tens of thousands of pages of documents they provided and testimony by other witnesses, obviating the necessity for a presidential interview.
Mueller has told the president’s lawyers that he needs to talk to their client to determine whether he had criminal intent to obstruct the investigation into his associates’ possible links to Russia’s election interference.
If Trump refuses to be questioned, Mueller will have to weigh their arguments while deciding whether to press ahead with a historic grand jury subpoena.
Mueller had raised the subpoena prospect to Dowd in March. Emmet T. Flood, the White House lawyer for the special counsel investigation, is preparing for that possibility, according to the president’s lead lawyer in the case, Rudy Giuliani.
The attempt to dissuade Mueller from seeking a grand jury subpoena is one of two fronts on which Trump’s lawyers are fighting.
In recent weeks, they have also begun a public-relations campaign to discredit the investigation and in part to preempt a potentially damaging special counsel report that could prompt impeachment proceedings.
On both fronts, they have attacked the credibility of a key witness in the inquiry, the fired FBI director James B. Comey; complained about what they see as investigative failures; and contested the interpretation of significant facts.
Giuliani said in an interview that Trump is telling the truth but that investigators “have a false version of it, we believe, so you’re trapped.”
And the stakes are too high to risk being interviewed under those circumstances, he added: “That becomes not just a prosecutable offense, but an impeachable offense.”