(National Sentinel) Legal Strategy: President Donald J. Trump doesn’t have to fire special counsel Robert Mueller in order to take the wind out of his “witch hunt” investigation while at the same time preserving the Constitution and reaffirming his authority as head of the Executive Branch.
That’s according to Wall Street Journal columnist Kimberley A. Strassel, who — writing in Friday’s paper — said there are two things our “high-energy” president can and should do to protect himself, the constitutional order and rule of law.
“Both would aid Mr. Trump’s presidency and serve the executive branch and the public in the longer term,” she writes.
Strassel noted further:
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.
She writes that one expert, constitutional lawyer David Rivkin, has convincingly argued in recent months that a president, as head of the Executive Branch, has the authority to fire anyone in his charge for any reason, and that includes, of course, former FBI Director James Comey — whose leaks of classified memos triggered the Mueller probe by his design.
But that firing and other actions taken by Trump, including his recent pardon of Bush administration official Scooter Libby, are being portrayed as “obstruction of justice,” an allegation that Rivkin says is not possible to levy against a president exercising his constitutional powers.
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.
In addition to shaking up his legal team, Trump should order the immediate declassification — with appropriate redactions, for legitimate intelligence purposes — every document that pertains the DoJ’s and FBI’s counterintelligence investigation.
That includes any and all documents from any and all appropriate federal agencies — the State Department, CIA, FBI, etc. — but also the Foreign Intelligence Surveillance Court warrants used by the Obama and Trump administrations to justify surveillance against the president and his campaign team and aides. Strassel notes that other documents include emails, texts, and “the interviews with dossier author Christopher Steele” along with “the story of how exactly the FBI came into possession of info about Trump aide George Papadopoulos” and “details of any as yet undisclosed FBI spying on the Trump campaign.”
She says that Trump’s advisers have thus far warned him against these disclosures once again on grounds that their declassification and release would constitute obstruction of justice.
“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,” she continued.
Strassel acknowledged there is some risk in setting a declassification precedent but they are far outweighed by the existential threat to the Executive Branch and likely loss of faith in federal law enforcement. So better to allow these documents to be released to the public so Americans have a better understanding of just how the special counsel probe came into being while putting Mueller’s findings thus far into better 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,” writes Strassel.
“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.”