THREAD: Here’s one way to understand what’s going on with the Trump team legal memo, why they put it out, why it’s wrong, and why even if anyone buys it it doesn't help Trump. /1
The Trump lawyers are trying to pull a fast one in a few ways. First, they’re trying to say Trump can’t commit the crime of obstruction of justice because he runs the justice department and can do whatever he wants with it. /2
Trump floated this theory himself a few months back when he claimed to have “an absolute right” to do whatever he wants with the Justice Dept. /3
There are 2 problems with this theory. The 1st is that it’s wrong. /4 washingtonpost.com/blogs/right-tu…
As @protctdemocracy has explained at length, among other reasons, the Constitution charges POTUS to “faithfully execute” the law. /5 protectdemocracy.org/independent-la…
The word “faithfully” there has to mean something as constitutional interpretation requires every word to be there for a reason. /6 See also this brief by @preetbharara @johnwdean @joycewhitevance et al nbcnews.com/politics/justi…
In this case, it means the President has to execute the laws “in good faith” – in other words, to advance the public interest and not some corrupt, self-interested purpose. /7
Here, if he were to interfere with an investigation in order to protect himself, his family, or his aides, that’s not a “faithful execution” and therefore is beyond his constitutional executive powers. /8
But here’s the other tricky thing the Trump team is trying to do. They know that some conservative legal scholars believe in something called the “Unitary Executive” theory. /9
That theory argues that the President can do basically what he wants with the Justice Dept because all executive power, including the power to open or close an investigation, ultimately emanates from the President. /10
And so the Trump team expects to get support from conservative legal scholars on this. /11
But here’s the rub: that unitary executive theory would only extend to saying the President can’t be charged with the crime of obstruction for trying to end an investigation. /12
It would say nothing about whether the President can be impeached for the same acts. /13
In fact, the unitary executive theory is actually precisely that the president can end any investigation and if he abuses that power, the remedy is impeachment. /14
But the Trump lawyers plan to spin the theory to say that it means not only can Trump not be criminally charged, but that there’s actually nothing inherently wrong with him obstructing and thus it’s not a grounds for impeachment either. /15
But that’s not what the theory actually holds. Trump’s lawyers think they can fudge not being chargeable and not being impeachable as the same thing. They're not. /16
The other way the Trump team is pulling a fast one is that the theory, even if one bought it, would only apply to the President shutting down an investigation. /17
If, on the other hand, the President told a witness to lie, or dangled a pardon to induce a witness to obstruct, those are not Article II powers under any theory. /18
And any sound lawyer would agree they are criminally chargeable, at a minimum after a president leaves office, if not before. /19
The deliberate leak of this memo is part of what will be a concerted public campaign to make those fudges and try to win over the court of public opinion. /20
It’s critical that the media, public and Congress not buy it. As both the underlying theory is wrong, and even if it were right, it only means if Trump did obstruct, he should be impeached. /21
Conservative lawyers who believe in the unitary executive should be very public and clear that the theory is not a license to presidents to obstruct justice, and that if one does, impeachment is a proper remedy. /22
So to recap: Trump’s theory is wrong, they’ve applied it overbroadly as even if right it only applies to a sliver of the suspected conduct, and it’s no protection against impeachment. /End. For more on all this, @protctdemocracy has you covered: protectdemocracy.org/independent-la…
