CNN’s Chris Cuomo vs. Jay Sekulow: President Can’t Obstruct Justice; “Inherently His Constitutional Power”


President Trump legal team member and former Fox News contributor Jay Sekuow debates CNN host Chris Cuomo about accusations that the president is under investigation:

CHRIS CUOMO, CNN ANCHOR: All right, President Trump and his legal team are caught in an obvious contradiction over whether the president is under investigation. The president tweeted that he is. His lawyer says that he isn’t. And the question becomes who — why is this even out in the air? Who is this playing to the president’s advantage? Why does it matter?

So let’s discuss that and what should matter with the president’s lawyer, Jay Sekulow.

Counselor, thank you for joining us.

Why are you engaging in this line of whether or not he’s under investigation, like it’s some mystery?

JAY SEKULOW, TRUMP LEGAL TEAM: Well, I didn’t — I didn’t engage in the line of that. There was a tweet from the president of the United States in response to a “Washington Post” story that had five unnamed sources saying the president was under investigation. And as I said all weekend, there’s been no notification to any of us that the president is under any investigation. And as I said, James Comey has said on three separate occasions that the president was not under investigation. So here’s where this was manufactured, if you want to call it manufactured. It was manufactured from “The Washington Post.” All the president did was respond to “The Washington Post” through social media platforms.

CUOMO: Right, but, look, I take issue with the word “manufactured.” One, it’s a political question and a debate about leaks and not leaks. I mean politicians only don’t like leaks when they play against them. But you’re a counsel, so I’ll keep it to your purview here.

SEKULOW: Yes.

CUOMO: Comey talking about whether or not the president was under investigation has nothing to do with what we’re dealing with now, with Mueller, who common sense, if nothing else, would suggest is looking at the circumstances surrounding the firing of Comey. You know that. So to say, well, Comey told him he’s not under investigation —

SEKULOW: Well — well, hold on —

CUOMO: So he can’t be, that’s illogical because —

SEKULOW: Well, let’s say — let’s talk about the logic —

CUOMO: What’s being said right now is that —

SEKULOW: Yes.

CUOMO: The special counsel is looking at everything, including the circumstances around Comey’s firing. Doesn’t that make sense?

SEKULOW: Well, two questions, two statements. Number one, the questions that I have been asked over the weekend was, was the president under investigation? Those reports in “The Washington Post” were false. The legal team has not been notified of investigation. Number two —

CUOMO: Just because you haven’t been notified doesn’t mean you’re not under investigation.

SEKULOW: Wait — hold on, Chris.

CUOMO: There’s no duty to inform you.

SEKULOW: Chris, let’s look at what — listen to what you — listen to what you just said though.

CUOMO: Please.

SEKULOW: You just said before, what would be the aspect of the investigation? So here’s what it would be. The president of the United States, in this hypothetical investigation — let me just get — get this straight. The president of the United States, after advice and consultation with his attorney general and his deputy attorney general and with others within his administration, which is what a president does in a deliberative process, makes a determination to terminate the FBI director based on the recommendation of his Department of Justice. Now, under your theory, the Department of Justice, through its special counsel’s office, would be investigating the president for taking the action that they recommended him to take.

CUOMO: Well, a couple of things. One, I’m not arguing the substance. James —

SEKULOW: So, that is not obstruction of justice. I just want to be very clear on what that is.

Go ahead, Chris.

CUOMO: Oh, no, I get it. I get the case that you’re making.

SEKULOW: Yes.

CUOMO: But, first of all, James Comey said at least twice in his testimony, which should be as obvious to you as it is to anybody, which is, I’m sure the special counsel will work towards to try to understand what the intention was there and whether that’s an offense, talking about his firing and that Mueller would be looking at it. When Joe Manchin talked to him about it, he said, you know, it’s not my decision whether or not it was obstruction. That’s bob Mueller’s job to sort that out. And that’s all that’s being said here. So to say, oh, five anonymous sources —

SEKULOW: Yes, but —

CUOMO: Not only is that a specious premise that leaks are somehow bad all of a sudden when journalism relies on them so well and the president has loved them.

SEKULOW: Where are you — what do you think about the leak last night from ABC? What do you think about the leak last night to ABC where they said that the — their sources said the president was not under investigation? Is that OK?

CUOMO: Right. Look, —

SEKULOW: That’s OK?

CUOMO: I mean it’s all going to be about the strength of the reporting.

SEKULOW: I don’t like playing with leaks. I like to deal with the facts.

CUOMO: All I’m saying is this, do you think that Bob Mueller is looking at the circumstances surrounding Comey’s firing? Do you think that that’s part of the purview of his probe?

SEKULOW: I have no idea if he’s looking at that or not because if there is a —

CUOMO: Would you be surprised if he is?

SEKULOW: There’s a fundamental threshold question there that the president’s authority to terminate the FBI director is based on the Constitution. So —

CUOMO: But that’s a conclusion. That’s a conclusion. I’m saying, would he even look at it?

SEKULOW: Well, no, that’s actually the — that’s actually the — that’s actually the predicate. You don’t even go to that if the — you don’t even go to the — looking at whatever the facts are based on if, in fact, the president has that authority to begin with. So actually the way it works is, you look at the Constitution (ph).

But let me say this. Do you think —

CUOMO: No, hold on a second. Does — hold on, this matters, Jay —

SEKULOW: Well, no.

CUOMO: And I respect you very much as a counsel.

SEKULOW: Yes.

CUOMO: I’ve researched you a lot. I know who you are. You’re a good attorney.

SEKULOW: Thank you (ph).

CUOMO: The president hired well here. What I’m saying is, look, Mueller is tasked with looking at all of the circumstances surrounding the Russia interference probe, right? That’s common knowledge. This is something that he would look at. Comey said as much in his own testimony. That doesn’t mean that the president is a target. And for those at home, you have target, subject, witness.

SEKULOW: Right.

CUOMO: And, you know, we don’t know what the extent of it is or if he will even pursue it on any level. But to fight the notion that Mueller would be looking at this at all seems to be something that only the president wants to be not true. But it makes perfect sense that he would be looking at it. Why fight that notion?

SEKULOW: But — I’m not — it’s not a question of fighting notions. There’s a question of responding to a leak from the Washington — to “The Washington Post” that set up a predicate that the president was under investigation. That’s all I’ve addressed. No one has been notified of an investigation —

CUOMO: I know, but you say he can’t be under investigation because I haven’t been told. And that’s a species premise. You know there’s no (INAUDIBLE) to tell you whether you’re under investigation.

SEKULOW: No, no, no. No, no, no, there is — there is a — no, and that’s — that’s incorrect. Right — that — the — that’s incorrect. Here’s what I said. The response to the — by the president in his tweets — tweet was in response to the “The Washington Post” piece from five undocumented source.

CUOMO: OK.

SEKULOW: The response that — what I’m — what I’m talking about here is the constitutional issue of the president’s ability to take action based on — based on the recommendation of his people and based on his authority as president of the United States. We all understand the constitutional authority there.

CUOMO: And how could you make —

SEKULOW: So —

CUOMO: How could you make an informed analysis of that if you don’t know what he did?

SEKULOW: Well, who would not know what he did?

CUOMO: How could Mueller make an informed decision about whether or not what the president did went beyond his power if he doesn’t know what he did?

SEKULOW: Well, look, that — sure. But here’s the question. I mean I think this is the real issue. You’re —

CUOMO: Well, if your answer is sure, you’re — then you are validating the fact that he needs to look at the underlying facts.

SEKULOW: Well, no, no, no, you — in the hypothetical, that’s correct. In a hypothetical that’s correct, but the questions I received —

CUOMO: In reality that’s correct.

SEKULOW: Well, in ever question received this weekend was, and including Chris Wallace yesterday said, have you been notified that the president is under investigation? What did I say, we’ve not been notified. No, the president’s not under investigation. We’ve not been notified.

CUOMO: Right, but is there any duty for them to tell you?

SEKULOW: No duty to tell in the sense of an obligation to tell. But you know how it works in Washington. If you were a target, if you were being investigated, you would be told really quickly into the investigation process.

CUOMO: Not — not necessarily. And — and what’s odd about this is —

SEKULOW: Let’s be clear. Chris, can I — can I get one thing very —

CUOMO: Why don’t you just pick up the phone —

SEKULOW: Go ahead.

CUOMO: And call Bob Mueller and ask whether or not your client is — has any role in their investigation? Why don’t you just ask? Why don’t you ask McGahn to just make a phone call.

SEKULOW: I am not —

CUOMO: It’s not like this White House is adverse to making any kind of inquiries about the Russian probe. Why not just find out?

SEKULOW: You know, but you’re base — you’re basing your conversation — you said this earlier. You said that Comey said that he’s sure the special council will look at this.

CUOMO: Yes, how — well, why wouldn’t he be looking at it?

SEKULOW: You know, James Comey didn’t bother to — hold it. Well, James Comey didn’t bother to do that when Loretta Lynch — with Loretta Lynch when she was the attorney general when Hillary Clinton was being investigated. He decided to become judge and jury. So I wouldn’t put a lot of emphasis into —

CUOMO: But that’s — but that’s irrelevant here. What Comey did or didn’t do —

SEKULOW: No, into what — no, it’s very relevant. He would be the witness. James Comey would be the witness.

CUOMO: How would — how would — why does that — why is that helpful in assessing whether or not Mueller would be looking at the circumstances surrounding the firing of Jim Comey?

SEKULOW: The relevancy is that the only reason we’re talking about this is because of what, a leak from “The Washington Post.”

CUOMO: That’s absolutely not true.

SEKULOW: There was no indication —

CUOMO: That is not why I’m asking you about it.

SEKULOW: Hey, wait, you didn’t let me finish my sentence.

CUOMO: Go ahead.

SEKULOW: You didn’t let me finish.

CUOMO: I’m sorry, go ahead, Jay.

SEKULOW: And because James Comey raised it up in his testimony. He said, I’m sure the special counsel’s going to do it. I wouldn’t exactly call James Comey a credible witness on this matter, period.

CUOMO: That’s fine.

SEKULOW: I really don’t. So — so —

CUOMO: That’s fine. That’s your opinion and you’re welcome to it.

SEKULOW: Yes.

CUOMO: What I’m saying is, the idea that Mueller wouldn’t be looking at the circumstances surrounding the firing of the director of the FBI just defies common sense because of what we know about those circumstances.

SEKULOW: No, you’re asking — you’re asking me to — you’re asking me to speculate what they might to in the future —

CUOMO: It doesn’t mean he’s going to draw conclusion. It doesn’t mean he’s going to give a recommendation, but he’d look at it.

SEKULOW: No, of course not. Yes, but you’re asking me to give a speculation as to what the special counsel might do in the future. The question I was asked, is the president under investigation and the answer to that was no, we were not notified.

CUOMO: And you said no he isn’t. And you can’t — but you don’t know whether or not that’s true. You could know.

SEKULOW: Well, actually the question is — the question that started this —

CUOMO: And why you haven’t picked up the phone and find out is a little odd. If I hired you, I’d want you to make that phone call.

SEKULOW: Well, you haven’t hired us. We represent the president of the United States. But let me say this —

CUOMO: Thank God. Thank God I don’t need you right now, Jay Sekulow.

SEKULOW: (INAUDIBLE). Well, well, that’s good. I’m glad to hear that. But let me say this, the question from Chris Wallace was, what, have you been notified by the president — by the special counsel that the president was under investigation?

CUOMO: Right. Right.

SEKULOW: The answer to that was, no, we have not.

CUOMO: Right. But if you’re going to spend so much time on this, why don’t you pick up the phone and get the answer and then you could actually say, yes, I asked Mueller, he said, no, I’m not. We’re not looking at this. Why don’t you pick up the phone?

SEKULOW: We have a lot of lawyers in this case. I’m just — look, you’re asking me to pick up the phone on an investigation that right now we don’t know exists.

CUOMO: No, I’m not. You know — of course you know it’s exists.

SEKULOW: So I’m not — you know, that’s illegal (ph).

CUOMO: You know Mueller’s looking at this. Why didn’t you just pick up the phone and find out if it matters so much to the president whether or not he’s being looked at.

SEKULOW: Well, you — you know, but you — you know the difference between —
you know this because you practiced law.

CUOMO: Find out.

SEKULOW: You know there’s a difference between investigations, inquiries. I mean there’s a whole series of matters you look at before you get to the level of investigation.

CUOMO: But, I’m saying, you could get the answer.

SEKULOW: I don’t know what they’re doing. I haven’t made that call. That’s the end of that — that line of inquiry. That discussion has not happened with us. Period. I — yes.

CUOMO: But what I’m saying is, you could get the answer to this instead of just trafficking in the speculation. And you made an assumption that I think is worthy of note also.

SEKULOW: All I — all I can tell you is —

CUOMO: You said, there can’t be any obstruction, so you’d never look at it, because the president took the advice of the A.G. and that’s why he fired Comey. The president of the United States says that’s not true. He said he was going to get rid of them — get rid of Comey no matter what the A.G. said.

SEKULOW: Well, he — look, I — actually, Chris — Chris, what I said —

CUOMO: And he said that he was going to get rid of him no matter what the A.G. said because he didn’t like what he was doing on the Russian probe. So it’s not just about what Rosenstein wrote in a memo.

SEKULOW: Yes. Chris, what I said — I said — I said the president was in a deliberative process. He was in the deliberative process that included the A.G. and — and the recommendation from the deputy A.G. But he — look, he ultimately makes the decision based on a whole –a lot of factors. And it’s interesting to me —

CUOMO: He said he was going to fire him no matter what they recommended.

SEKULOW: So what — what — why is that a violation of any law? What law is that violating, Chris?

CUOMO: I’m not saying it is.

SEKULOW: Right.

CUOMO: I’m saying it’s a violation of what you laid out as a premise.

SEKULOW: So if there’s no violation — he would worry that the president of the United States —

CUOMO: Which he, can’t be investigated because he only followed their advice. He say he did not follow their advice.

SEKULOW: Do you — do you agree — Chris, do you think the president of the United States has the authority to fire the FBI director for whatever reason he would like?

CUOMO: I think that is fairly clear.

SEKULOW: James Comey just said it.

CUOMO: I think this — I think the circumstances around it could also be something worthy of inquiry and investigation.

SEKULOW: OK, so James Comey, on his — in his testimony said the president has the right and obligation, authority, to fire the attorney — the FBI director and that he serves at the pleasure of the president.

CUOMO: Right. All true.

SEKULOW: And he was terminated. So that’s it.

CUOMO: Well, but does that mean you can fire somebody for absolutely any reason? Obviously not, right? We saw that with Watergate and in other instances. What you do something matters.

SEKULOW: Now, Watergate was completely different. Don’t conflate bribery, don’t conflate those issues with an issue like this, which is presidential authority. Richard —

CUOMO: Why is bribery more worthy of a standard to uphold than obstruction?

SEKULOW: Because obstruction — the executive is obstructing with itself? That’s what you’re saying? By taking action that they have the authority to do? The president has the — do you — let me ask you this question. You’re a smart guy. Does the president have the authority, for whatever reason he chooses, to terminate the FBI director? Like James Comey said, he serves at the pleasure of the president. Does he have that authority?

CUOMO: I — he has the authority to get rid of the FBI director —

SEKULOW: Then the case is — correct.

CUOMO: But corrupt intent should be part of the analysis. It’s certainly worthy of looking at it.

SEKULOW: Well, where is — where is that in the law?

CUOMO: Because what you would be suggesting —

SEKULOW: Where is that in the law?

CUOMO: Well, but that’s —

SEKULOW: But that’s not in the law.

CUOMO: But that’s — but that’s an interesting legal question. Is there a direct statute on this? No. Is there case law precedent on this? No.

SEKULOW: I deal with — that’s what I do, interesting legal questions.

CUOMO: That’s what Dershowitz is relying on, that there’s somewhat of an open question.

SEKULOW: Well, no, that’s not true. Actually — no.

CUOMO: This has never been directly litigated and you know that.

SEKULOW: No, but there’s been memorandums from the Office of Legal Counsel, the Department of Justice, going back almost 50 years and going forward as recently in the 2000s that on these issues of obstruction that the president cannot, when he’s doing this kind of activity because it’s inherently his constitutional power. And that’s all I’m saying here.

CUOMO: Right, but that doesn’t mean there is no check on that power. And, look, all of these are conclusions that will probably never be litigated in this instance because this isn’t about —

SEKULOW: Right.

CUOMO: Seeking an indictment. This is about seeing a recommendation for potential political action by Congress, right?

SEKULOW: Well, you’re — yes. And I’m not — you — that’s what you — but you can’t deflate —

CUOMO: What I’m saying is, why would you jump all the way to the end?

SEKULOW: You can — to just — you don’t — I was going to say exactly that, you cannot —

CUOMO: To just — to justify that. No one’s looking at these question.

SEKULOW: You cannot conflate — you should not conflate the issue that has been raised on whether the president could be investigated for obstruction with any kind of political consequences. You’re dealing with the legal issue. There’s a political issue. Those are very different. But the president has the authority to engage in exactly what he did as far as terminating James Comey.

CUOMO: Right, but why he does what he does —

SEKULOW: And James Comey knew it. James Comey said it.

CUOMO: But why he does what he does could certainly be part of a probe with the political action. Jay, we’re going to lose our window. You’re welcome back any time.

SEKULOW: All right.

CUOMO: Thank you for being here.

SEKULOW: Thanks for having me, Chris. Appreciate it.