WASHINGTON ― Candidate Donald Trump bragged that he could shoot someone on New York’s Fifth Avenue and not lose any support, and now President Donald Trump’s lawyer says Trump could shoot the FBI director in the Oval Office and still not be prosecuted for it.
“In no case can he be subpoenaed or indicted,” Rudy Giuliani told HuffPost Sunday, claiming a president’s constitutional powers are that broad. “I don’t know how you can indict while he’s in office. No matter what it is.”
Giuliani said impeachment was the initial remedy for a president’s illegal behavior ― even in the extreme hypothetical case of Trump having shot former FBI Director James Comey to end the Russia investigation rather than just firing him.
“If he shot James Comey, he’d be impeached the next day,” Giuliani said. “Impeach him, and then you can do whatever you want to do to him.”
Norm Eisen, the White House ethics lawyer under President Barack Obama and now a senior fellow at the Brookings Institution, said the silliness of Giuliani’s claim illustrates how mistaken Trump’s lawyers are about presidential power.
“A president could not be prosecuted for murder? Really?” he said. “It is one of many absurd positions that follow from their argument. It is self-evidently wrong.”
Eisen and other legal scholars have concluded that the constitution offers no blanket protection for a president from criminal prosecution. “The foundation of America is that no person is above the law,” he said. “A president can under extreme circumstances be indicted, but we’re facing extreme circumstances.”
“A president could not be prosecuted for murder? Really? It is one of many absurd positions that follow from their argument. It is self-evidently wrong.”
- Norm Eisen, former White House ethics lawyer under President Barack Obama
Giuliani’s comments came a day after The New York Times revealed that Trump’s lawyers in January made their case to special counsel Robert Mueller that Trump could not possibly have obstructed justice because he has the ability to shut down any investigation at any time.
“He could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired,” Jay Sekulow and John Dowd wrote in a 20-page letter. Dowd has since left Trump’s legal team, replaced by Giuliani.
The letter also admits that Trump “dictated” a statement that was then released by his son, Donald Trump Jr., regarding a meeting held at Trump Tower in June 2016 between top Trump campaign officials and Russians with links to that country’s spy agencies.
That meeting was scheduled after the Russians said they had damaging information about Democratic presidential nominee Hillary Clinton that would be of use to the Trump campaign. The Trump-dictated statement falsely claimed the meeting was primarily about the adoption of Russian children by American families ― the same topic that Trump claimed had been the substance of a conversation he had had with Russian leader Vladimir Putin the previous evening in Germany.
The U.S. intelligence community concluded during the 2016 campaign that not only was Russia interfering in the U.S. election, but was actively trying to help Trump win.
Both Sekulow and White House press secretary Sarah Sanders claimed, falsely, that Trump had not dictated the statement, but had merely offered his son suggestions. Sanders on Sunday referred questions about the matter to Trump’s outside legal team.
Giuliani said Sekulow was misinformed about the Trump Tower meeting, which in any case was not that significant. “In this investigation, the crimes are really silly,” he said, arguing that the firing of Comey last year could not be construed as obstruction of justice because Trump had the right to fire him at any time and for any reason. “This is pure harassment, engineered by the Democrats.”
Comey had been leading the FBI probe into possible collusion between the Trump campaign and Russian intelligence until his dismissal, which led to the appointment of Mueller to take it over. Within two days of the firing, Trump told both NBC News and Russian officials visiting him in the Oval Office that he had done it because of the investigation.
Eisen said Giuliani’s assertion, taken to its logical conclusion, would mean that a mob boss under investigation by the FBI could give Trump a bribe to fire the FBI director, Trump could explain on television that he had done so “because of this Mafia thing,” and then not face criminal charges.
“Well, of course it would be appropriate to initiate a prosecution,” he said. “I think the legally correct answer is, as usual, the opposite of Giuliani’s answer.”
Giuliani, once the mayor of New York City and prior to that the U.S. attorney there, took charge of Trump’s outside legal team in April, saying then that he planned to wrap the whole thing up within a few weeks. Now he said he is not sure when it will end because Mueller is taking too long and not turning over material to Giuliani ― such as a report of what was learned from an FBI informant who made contact with several members of the Trump campaign with links to Russia.
Giuliani said he has so far met with Trump about 10 times and spoken to him on the phone another 40 or so times, totaling at least 75 hours of conversation. “I’m not billing by the hour, otherwise I could tell you exactly,” he joked about the case he has taken on for free.
Mueller’s investigation has so far resulted in the guilty pleas of five people, including three former Trump campaign staffers, and the indictment of 14 other people and three companies. That total includes 13 Russians, Trump’s former campaign chairman Paul Manafort, and the Internet Research Agency, a “troll farm” that was used to create and disseminate propaganda to help Trump win.
A related investigation by Giuliani’s former U.S. attorney’s office is examining the dealings of longtime Trump lawyer Michael Cohen. A former business partner has agreed to cooperate in that probe and plead to New York state charges.