Opinion Senate should defend constitutional powers of Trump -- not Mueller

19:52  10 may  2018
19:52  10 may  2018 Source:   foxnews.com

Mueller's former assistant says grammatical errors prove leaked questions came from Trump

  Mueller's former assistant says grammatical errors prove leaked questions came from Trump Michael Zeldin, a CNN legal analyst and former assistant to Robert Mueller, said Tuesday he believes President Trump leaked the list of nearly 50 questions the special counsel allegedly wants to ask Trump. "I think these are notes taken by the recipients of a conversation with Mueller's office where he outlined broad topics and these guys wrote down questions that they thought these topics may raise," Zeldin said on CNN's "New Day.""Because of the way these questions are written... lawyers wouldn't write questions this way, in my estimation. Some of the grammar is not even proper," he continued.

Before the Senate debates a bill to protect Special Counsel Robert Mueller from being fired by President Trump , it should consider this: Mueller ’s use of a subpoena to require testimony by the president would violate the separation of powers in the Constitution and is an abuse of the grand

The political elites who continue to prattle on about how President Trump ’s firing of special counsel Robert Mueller would “spark a constitutional crisis” are wrong. Donald Trump has been abusing the powers of his position since the day he took office.

Donald Trump wearing a suit and tie © Provided by Fox News

Editor’s note: The opinions in this article are the author’s, as published by our content partner, and do not necessarily represent the views of MSN or Microsoft.

Before the Senate debates a bill to protect Special Counsel Robert Mueller from being fired by President Trump, it should consider this: Mueller’s use of a subpoena to require testimony by the president would violate the separation of powers in the Constitution and is an abuse of the grand jury process.

In addition, Mueller’s proposed questions for President Trump in the special counsel’s wide-ranging investigation of Russian interference in the 2016 presidential election would violate Article II of the Constitution and executive privilege.

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Senate Minority Leader Chuck Schumer (D-N.Y.) speaks as House Minority Leader Nancy Pelosi "Firing Rod Rosenstein, DOJ leadership, or Bob Mueller could result in a constitutional crisis of the Defending Nuclear Pact, Iran's Rouhani Says Trump Has 'No Clue' About International Treaties or

The rest of the Senate GOP has simply stayed silent. ThinkProgress has reached out to all Republican senators who have not commented on the indictments or how they would react should Trump fire Mueller .

Here’s a simple fact that Mueller chooses to ignore: A sitting president cannot be indicted. This fact cuts the legs out from under Mueller’s efforts to require testimony by President Trump.

In the wake of Watergate, a Republican Justice Department Office of Legal Counsel (OLC) in 1973 thoroughly discussed whether a president could be subject to criminal prosecution. Because the president is “selected in a highly complex nationwide effort,” the OLC found it would be “incongruous” to “bring him down … by a jury of twelve, selected by chance ‘off the street.’”

Action by the House and Senate, via impeachment, is the appropriate process for “such a crucial task, made unavoidably political by the nature of the ‘defendant,’” the OLC said.

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Senate Majority Leader Mitch McConnell forcefully defended Robert Mueller on Tuesday, saying the special counsel should be allowed to finish his investigation and that legislation was "not necessary" to protect him against the threat of being fired by President Donald Trump .

Congress should require Trump to explain his decision to Congress if he fires Special Prosecutor Robert Mueller Congress does not need to restrict the president’s power by requiring him to defend in court his reasons for the firing, but it has the right and the power to require not just

The OLC observed that the “modern Presidency” has had to “assume a leadership role undreamed of” in earlier years. It added: “The spectacle of an indicted President still trying to serve as Chief Executive boggles the imagination.”

In 2000, because of three U.S. Supreme Court cases, a Democratic Justice Department OLC revisited the issue of presidential immunity from criminal prosecution.

Two cases concerned President Richard Nixon, the most well-known involving the “Nixon tapes.” After indicting Nixon aides, the special prosecutor in the case subpoenaed the Nixon tapes (recordings of the president’s conversations with his aides) for evidence at trial. The Supreme Court upheld the subpoena with specific limitations requiring in camera review (a legal term meaning privately, not in open court) and said only relevant and material information needed to be produced.

Carl Bernstein: Giuliani's goal is to 'throw bombs' into the Mueller probe

  Carl Bernstein: Giuliani's goal is to 'throw bombs' into the Mueller probe <p>Veteran journalist Carl Bernstein on Friday accused Trump lawyer Rudy Giuliani of trying to "throw bombs" into special counsel Robert Mueller's investigation into possible collusion between the Trump campaign and Russia.</p>"Rudy Giuliani is capable of being so reckless as we have seen throughout the campaign and as we are seeing now, that it is very difficult to parse what he is doing and saying, except that he is trying to throw bombs into the Mueller investigation," Bernstein said on CNN's "Anderson Cooper 360.

Thom Tillis (R-NC), who has a proposal to check Trump ’s power to fire Mueller ’s investigation, told reporters he wants the Senate Asked if Congress should act, Sen. John Kennedy (R-LA) told Vox recently he is “not sure it’s constitutional for us to tell the president who he can fire and can’t fire.”

When the Constitutional Convention of 1787 outlined the impeachment power , there was a good deal of clarity as regards when and how it should be employed. But if Trump fires Robert Mueller , there will be no more room for caution. And one of the best ways to defend the Mueller inquiry is for House

The other Nixon case held that the president was immune from civil liability for “official acts.”  

In the third case, involving Paula Jones (who claimed Bill Clinton sexually harassed her), the Supreme Court held that Clinton was not immune from civil liability involving matters occurring before he took office, since such matters were not official presidential acts. (Independent Counsel Ken Starr withdrew his subpoena when President Clinton agreed to testify, so that case was not discussed.)  

The OLC determined that none of the Supreme Court’s rulings altered the 1973 opinion finding the president “uniquely immune” from criminal process.

In dealing with the Nixon tapes, the high court balanced the president’s “generalized interest in confidentiality” with the requirement of “the fair administration” of a criminal trial. Thus, the ruling had no bearing on whether a president could be indicted. The other two cases were civil.         

The OLC noted that criminal prosecutions are different from civil litigation, requiring personal attention and imposing “physical disabilities.” Therefore, “criminal proceedings against a President in office should not go beyond a point where they could result in so serious a physical interference with the President’s performance of his official duties that it would amount to an incapacitation.”

Can Trump get subpoenaed? Honestly, no one knows for sure.

  Can Trump get subpoenaed? Honestly, no one knows for sure. Let's walk through the legal arguments for and against forcing a sitting president to sit down for an interview he doesn't want to give.But Trump's most talkative attorney thinks a president, unlike the rest of us, can't be successfully subpoenaed.

In January, after the news broke that Trump had tried to get Mueller fired, the chairman of the Senate Judiciary Committee urged Trump to let Grassley said he wanted the two bills to be reconciled and then he would examine any potential constitutional concerns about the separation of powers .

But it does not have legal means to usurp the president’s constitutional power . Trump should have learned this from his botched firing of FBI director James Comey — which is what bought him Mueller . I have been inclined to defend the GOP-led committees against charges that they are

If Mueller cannot indict President Trump, what possible use can he make of any presidential testimony? The only option is that he will provide it to Congress for consideration of articles of impeachment.

But referring President Trump’s testimony to Congress would abuse the grand jury process, which is only to be used for a criminal proceeding. According to the U.S. Attorneys’ Manual, which Special Counsel Mueller is obligated to follow: “A grand jury has but two functions – to indict or, in the alternative, to return a no bill.”

Providing the legislature with testimony obtained from an executive branch grand jury subpoena also violates the Constitution’s separation of powers.

Mueller reports to Deputy Attorney General Rod Rosenstein, an executive branch official. Impeachment is purely a legislative function. The executive cannot utilize its awesome power to compel grand jury testimony for the purpose of providing it to another governmental branch.

If Congress finds the president’s refusal to testify an impeachable offense, it can allege so in articles of impeachment.

The substance of the recently leaked list of questions that Special Counsel Mueller outlined for President Trump’s counsel is also in violation of the Constitution and executive privilege. Not one of the questions passes requirements mandated by the Constitution and case law defining executive privilege.

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Those numbers will grow if Trump 's approval ratings decline and Democrats win control of the House or Senate in 2018. Trump could fire Mueller , but the backlash might unify both parties against him. He could not cite his constitutional powers as an absolute defense to a treason charge.

Senate . House. Campaign. As I wrote recently, Mueller should question Rep. What Wray can do by employing the nuclear option of guaranteeing he will resign if Trump fires Rosenstein or Mueller will either prevent the grave constitutional danger that is fast approaching or make it clear to

Any question about firing FBI Director James Comey or obtaining National Security Adviser Michael Flynn’s resignation violates the president’s Article II authority to have vested in him “all executive power.”

The president had unfettered authority to fire both officials for any reason, for multiple reasons, or for no reason. Incidentally, if the firing of Comey can be construed as obstruction of justice, then Rosenstein – who discussed such a firing with the president and wrote a scathing memo recommending that Comey be fired – is a co-conspirator. Yet, he is supervising the Mueller investigation.

Numerous questions deal with the deliberative process, such as how were the decisions made to request the resignation of Flynn and to fire Comey. Some request information about the president’s discussions with White House Counsel Don McGahn.

The answers to these questions all involve the decision-making process and, as such, are clearly covered by executive privilege.

The president is not readily available to be interviewed under established case law. There must be a “demonstrated, specific need for evidence in a pending criminal trial,” which courts have defined as evidence that is material to the matter at issue and not available elsewhere with due diligence.

Ignoring the obvious – that there is no criminal trial pending as in the Nixon tapes case – not one Mueller question can meet the standard that would require executive privilege to be waived.

Unless, of course, you count the numerous questions asking what the president “thought” in response to various situations. These include Comey’s Jan. 6, 2017 briefing to President-elect Trump; Comey’s March 20, 2017 testimony before the House Intelligence Committee; the appointment of a special counsel and other issues.

It is correct that only the president can state what he “thought” of the listed occasions. Yet, I recall the Catholic confessional as the only place where I have been penalized three Hail Marys after admitting to sinful thoughts. A president’s thoughts are not – and cannot be – the basis for any governmental inquiry.

Mueller has over a dozen experienced lawyers on his team. They are all veterans of the federal criminal justice system. They know very well that as executive branch personnel they must follow OLC’s opinions that a president cannot be indicted.

And these lawyers know very well that no court has ever ruled that a president may be subpoenaed to testify in a criminal proceeding involving his own conduct.

The lawyers on Mueller’s team also know that the grand jury cannot be used to obtain evidence except for the criminal process. And yet, Special Counsel Mueller has threatened the president with a grand jury subpoena.

The Senate needs to pass a bill to protect the constitutional authority of the presidency, not the bad faith conduct of the special counsel.

Giuliani: Mueller's team told Trump's lawyers they can't indict a president .
Special counsel Robert Mueller's team has informed President Donald Trump's attorneys that they have concluded that they cannot indict a sitting president, according to the President's lawyer. "All they get to do is write a report," Trump lawyer Rudy Giuliani told CNN. "They can't indict. At least they acknowledged that to us after some battling, they acknowledged that to us.

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