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What To Make Of President Trump's Latest Legal Assertions


President Trump has been tweeting some unusual legal arguments today. This morning, he wrote, the appointment of the special counsel is totally unconstitutional. Before that, he tweeted, I have the absolute right to pardon myself. This comes after a letter from President Trump's lawyers was published in The New York Times over the weekend. And among other things, they argued that President Trump could not have obstructed justice because he is ultimately the person overseeing this Russia investigation.

To explore the strength of those arguments and how they could be tested, professor Stephen Vladeck of the University of Texas Law School joins us. Welcome.

STEPHEN VLADECK: Thanks, Ari. Great to be with you.

SHAPIRO: Let's start with a claim that the special counsel appointment is totally unconstitutional. If I were to poll a hundred legal experts, how many of them do you think would agree with that statement?

VLADECK: Fewer than zero. I mean, the short version is, you know, the claim that the appointment itself is unconstitutional is basically the idea that Mueller is exercising more authority than someone in his position should be allowed to exercise. If you actually strip away the layers of that claim, what it really boils down to is that Mueller is doing more than the original appointment by acting Attorney General Rod Rosenstein authorized him to do. That's not a constitutional claim. It's a claim that he's just acting beyond his delegated authority. And, Ari, it's one that one federal judge at least has already rejected in the context of the Paul Manafort case.

SHAPIRO: Let's move on to the next claim. President Trump says he has the absolute right to pardon himself, echoing a claim in that letter from his lawyers that we saw over the weekend. Does he have that right to pardon himself?

VLADECK: Well, we don't exactly have a precedent for a prior president who thought he could pardon himself. The closest we have is an opinion from the Office of Legal Counsel in the Justice Department which in August of 1974 told President Nixon that the answer was no, that in fact the president could not pardon himself. Not much of a coincidence, I think, that Nixon resigned three days later. So...

SHAPIRO: But an opinion from the Office of Legal Counsel at the Justice Department is not a binding legal opinion from a judge, right?

VLADECK: Oh, of course. And so, I mean, I think no one could say that this question has been settled beyond peradventure. I think the larger point, though, is what would it say and what would it mean if a president really did have the authority to pardon himself? You know, I think the one place where I agree with Rudy Giuliani - he said over the weekend, you know, if the president pardons himself on Monday, Congress will impeach him on Tuesday. I have to think that's right.

SHAPIRO: Giuliani, of course, is part of the president's legal team. And the third claim, then - President Trump could not have obstructed justice, his lawyers argue, because ultimately he oversees the Russia investigation that he allegedly obstructed. Is this a widely accepted idea?

VLADECK: So I think this is the one that's actually probably on the firmest footing, which is not to say that it's widely accepted. But there's at least decent support for this proposition among legal scholars. The key of course is that obstruction of justice is a unique crime about interfering with an ongoing investigation. And the idea is that insofar as the president is the chief law enforcement officer, if he has the power to terminate the investigation, he should have the lesser power to, you know, take steps to basically tone it down.

SHAPIRO: Do you expect that's the kind of argument that his lawyers might one day make in court if President Trump is accused of obstructing justice?

VLADECK: Well, I think before we ever get there, Ari, we have to get over the other hurdle, which is whether a sitting president can in fact be indicted, you know, which I think is an even more categorical question that hasn't been answered.

SHAPIRO: Yet another big unanswered legal question in this conversation.

VLADECK: But if we step back, I mean, I think the larger point here is that the whole tenor of the letter we saw over the weekend and the president's tweets this morning is that basically, dear special counsel Mueller, here are all of the things I could theoretically do to make your investigation go away. Therefore, I don't have to do any of the lesser steps like sitting down with you for an interview.

SHAPIRO: So are you saying that while this may look on its face like a debate over the validity of the Mueller investigation, a debate over the constitutional power of the president, what it's really about is whether the president should sit down for an interview with investigators?

VLADECK: Oh, absolutely. I mean, I think this is quite clearly an effort by the president to try to bully the special counsel into if not abandoning his efforts to interview the president at least water them down, not try to subpoena him, not try to take the president to court. And he's using the specter of these unanswered legal questions basically as a way of saying, I'm right on all of these things. Therefore, you have to come to me. You have to meet me halfway.

SHAPIRO: Well, Stephen Vladeck, thank you for helping us sort through these unusual legal claims. Appreciate your time.

VLADECK: Thank you.

SHAPIRO: Professor Vladeck is at the University of Texas Law School, and he also writes for the blog Just Security. Transcript provided by NPR, Copyright NPR.