A year after Robert Mueller was appointed Special Counsel to investigate charges of Trump campaign collusion with Russians, and accusations that Trump attempted to obstruct the ongoing FBI investigation into those charges, the probe has failed to produce any evidence that such crimes were committed by Trump or members of his campaign.
Concerns about the harsh tactics which Mueller and his team have used to gain cooperation from potential witness have raised legal questions that threaten to stymie the cases that Mueller has already brought against Paul Manafort and Michael Flynn for alleged crimes that are unrelated to collusion or obstruction of justice. Mueller’s authority to bring charges against defendants which are unrelated to the Russian collusion and obstruction of justice charges has been challenged by two federal judges.
While these setbacks for the Mueller team are viewed as relatively minor in themselves, Trump’s new spokesman for his personal legal team, former New York City Mayor Giuliani, said Monday, “It makes our job [of defending the president against Mueller] a little bit easier.” Trump also commented on the pushback by the two federal judges in a Monday tweet which said, “The 13 angry Democrats in charge of the Russian witch hunt are starting to find out that there is a court system in place that actually protects people from injustice.” The tweet refers to the fact that 13 out of the 17 prosecutors on Mueller’s team are registered Democrats.
JUSTICE DEPARTMENT STONEWALLING
Trump’s defenders have raised serious objections to the lack of responsiveness, stonewalling and attempts to hide key information by FBI and Justice Department officials, including Mueller’s supervisor, Assistant Attorney General Rod Rosenstein. These officials have been defying legitimate requests from at least one federal judge, as well congressional committees with oversight responsibility for unfettered access to the key documents revealing how the probe had been initiated and then expanded after it failed to find any evidence to support the initial charges against President Trump.
Outraged Republicans and President Trump believe the officials are attempting to conceal the biased way in which they have been conducting the probe from the outset. They are also demanding the full exposure of the improper use by FBI and Justice Department officials of the Steele dossier as reliable evidence and a blueprint for their investigation, instead of a piece of anti-Trump propaganda which was secretly paid for by the Clinton campaign. Former FBI official Andrew McCabe testified that the dossier was used as the main justification for a secret FISA court warrant to place Carter Page, an advisor to the Trump campaign, under FBI surveillance.
Mueller’s probe has resulted in a handful of high profile indictments and guilty pleas, but no evidence to support the allegations that the Trump campaign election colluded with the Russians, or that Trump is guilty of obstruction of justice. These were the twin accusations which launched the special counsel’s investigation, and after almost two years of intensive investigation, they remain unproven.
VIRGINIA JUDGE CHALLENGES MUELLER’S MOTIVES
The most dramatic setback for Mueller’s investigation came last week. Senior U.S. District Court Judge T.S. Ellis III of the Eastern District of Virginia publicly challenged Mueller’s motives for pressing the prosecution of former Trump campaign manager Paul Manafort on 18 counts of bank and tax fraud which had nothing to do with the 2016 presidential campaign or the charge of obstruction justice, which were the basis for Mueller’s investigatory mandate. Manafort’s lawyers had asked the judge to throw out the charges against their client because they were outside the scope of the Russian collusion case that Mueller and his team had been authorized to prosecute.
Judge Ellis said that the only reason Mueller was prosecuting Manafort on old bank fraud charges was “to exert leverage on a defendant so that the defendant will turn and provide information on what is really the focus of the special prosecutor,” namely the charge that President Trump colluded with the Russians during the 2016 election.
“If I look at the indictment, none of that information has anything to do with links or coordination between the Russian government and individuals associated with the campaign of Donald Trump. So I don’t see what relation this indictment has with what the special counsel is authorized to investigate. You don’t really care about Mr. Manafort’s bank fraud,” Judge Ellis said. “You really care about getting information Mr. Manafort can give you that would reflect on Mr. Trump and lead to his prosecution or impeachment or whatever. That’s what you’re really interested in.”
“Come on man!” Judge Ellis exclaimed out of frustration with the argument presented by the lawyer representing Mueller’s team.
Judge Ellis, a 30-year veteran of the federal bench who was appointed by President Ronald Reagan, is known for his outspoken intolerance for prosecutors who overreach. He noted that in the Manafort case, “the allegations clearly pre-date the appointment of the special counsel. None of it had any relation to the campaign.” The judge concluded that the true purpose of Mueller’s investigation was to, “get somebody in a conspiracy and then you tighten the screws. I’ve been here awhile, the vernacular is ‘to sing.’”
Manafort had served on the Trump campaign manager for a period of five-months, starting in March 2016, and ran the campaign just before and during the Republican National Convention. Manafort resigned from the Trump campaign on August 19, 2016, after media stories criticized his financial dealings with Ukraine’s former pro-Russian president Viktor Yanukovych and his political party.
MANAFORT’S ALLEGED CRIMES HAD NOTHING TO DO WITH THE ELECTION
Judge Ellis noted that Manafort was being prosecuted for crimes he is accused of having committed more than a decade ago while working for the pro-Russian political party of Ukrainian President Viktor Yanukoviych, who was ousted from office by a popular uprising in 2014. Ellis asked why a bank fraud case with no “reference to any Russian individual or Russian bank” should have involved the special prosecutor.
He suggested that Mueller’s team should have followed the same procedure it used against Trump’s personal lawyer, Michael Cohen. Mueller turned that case over to the US attorney’s office for the Southern District of New York.
Judge Ellis noted that prosecutors from the US attorney’s office in the Eastern District of Virginia had been looking into Manafort’s financial dealings with the Ukrainians since 2014, and suggested they are better suited than Mueller’s team to handle Manafort’s case.
Judge Ellis was further convinced that Manafort’s case should be transferred after Mueller’s team admitted that their case against Manafort largely relied on information from the earlier probe by the Virginia federal prosecutors, and did not “arise” from the special prosecutor’s own investigation.
MUELLER HAS NO NEW EVIDENCE TO SHOW AGAINST MANAFORT
According to Mollie Hemingway, writing in The Federalist, Mueller’s investigators have been unable to find any evidence to back widely published accusations over the past 16 months that Manafort served as the middle man in the alleged collusion between the Russians and the Trump campaign. In an April 30 court filing, Manafort’s lawyers said that in response to their discovery motion, “the Special Counsel has not produced any materials to the defense; no tapes, notes, transcripts or any other material evidencing surveillance or intercepts of communications between Mr. Manafort and Russian intelligence officials, Russian government officials (or any other foreign officials).
Manafort lawyers contend that he was the target of a well-orchestrated campaign of leaks to the media “intentionally designed to create a false narrative in order to garner support for the appointment of a special counsel.”
Judge Ellis’ harsh remarks to Mueller’s team in his court room were read with undisguised glee by President Trump to an enthusiastic audience at the National Rifle Association’s convention in Dallas, Texas.
Trump called Judge Ellis “a very respected person. . . really something very special,” and welcomed the judge’s assessment that he was Mueller’s real target in going after Manafort.
“I’ve been saying that for a long time. It’s a witch hunt,” Trump said of Mueller’s probe.
Trump’s legal spokesman, Giuliani, called Judge Ellis’ observations as an independent member of the federal judiciary very significant because “it shows the concern that the president has raised that this is a witch hunt. . . all they [the Mueller team] want to do is kind of trap the president. So that’s really important to us because we don’t want him trapped.”
IS MUELLER’S EXTENDED PROBE PROPERLY AUTHORIZED?
Judge Ellis did not rule on the motion by Manafort’s defense lawyers to throw out the case. He also refused to call the criminal charges against Manafort illegitimate.
Judge Ellis complained that Mueller’s team was not following proper Justice Department procedure in handling Manafort’s case. Judge Ellis said the Manafort case was outside of Mueller’s jurisdiction as special prosecutor because “this indictment didn’t ‘arise’ from your investigation.”
Judge Ellis told deputy solicitor general Michael Dreeben, who was representing Mueller’s team in Ellis’ courtroom, “what we don’t want in this country, we don’t want anyone with unfettered power. It’s unlikely you’re going to persuade me the special counsel has unlimited powers to do anything he or she wants.”
Dreeben defended the special counsel’s investigation of Manafort as justified, given his once prominent role in Trump’s presidential campaign. Dreeben said that, “In trying to understand the actions of Mr. Manafort in Ukraine and the association he had with Russian individuals and the depths of those financial relationships, we had to follow the money where it led.”
Dreeben claimed that the broadened scope of Mueller’s investigation to include Manafort’s prior financial dealings had been authorized in two orders written by Deputy Attorney General Rod Rosenstein on May 17, 2017 and on August 2, 2017.
JUDGE DEMANDS FULL ACCESS TO ROSENSTEIN’S AUGUST ORDER
Judge Ellis quicky responded. “I have that [August order] right here, and I’m glad you raised it because 75 percent of it is blocked out, redacted. Why don’t I have a full copy it?” the judge asked. When Dreeben explained that only the visible parts of that order were relevant to the Manafort case, and the rest was classified, Judge Ellis angrily responded, “If any part of it is classified, it won’t surprise you to know that a district judge is fully cleared. In fact, I have several espionage trials underway.”
He gave Mueller’s team two weeks to get permission from U.S. intelligence agencies to show him a sealed, unredacted version of the original Rosenstein order for his personally review. When Dreeben told him the redacted portions did not pertain to the Manafort case, Ellis replied, “I’ll be the judge of that,” and accused the Justice Department of “not really telling the truth.”
Last week, the Justice Department again rejected the request by House Intelligence Committee Chairman Devin Nunes, backed by a congressional subpoena, to be shown a clean copy of the Rosenstein memo, citing “long-standing principles of investigatory independence.” This left frustrated Republicans calling for Rosenstein to be cited for contempt of Congress, and even threatening to have him impeached. Others called upon Attorney General Jeff Sessions, who had recused himself from the Russian investigation last year, soon after taking office, to fire Rosenstein for insubordination.
At the end of that exchange, a still seething Ellis asked Dreeben if he had anything to add. When Dreeben responded “No, thank you, Your Honor,” Ellis shot back, “Good choice on your part. Thank you for your arguments. They were entertaining.”
Manafort’s lawyers say that Rosenstein exceeded his authority by giving Mueller a “blank check” to investigate everyone in the 2016 Trump campaign for things they might have done years earlier. Judge Ellis appeared to be sympathetic to that argument, noting past cases in which independent counsels were guilty of prosecutorial overreach.
Mueller’s team was handed another legal setback on the issue of their jurisdiction last month when US District Court Judge Amy Berman Jackson suggested that Rosenstein’s May 2017 order establishing Mueller’s probe violated Justice Department regulations by granting him overly broad authority to pursue matters that “arise or may arise” from his inquiry into Russian election meddling.
In Jackson’s court in Washington D.C., Manafort is facing separate criminal charges of conspiring to launder money and failing to register as a foreign agent during the years he lobbied in Washington on behalf of the pro-Russian Yanukovych Ukrainian government. Judge Jackson told Manafort’s lawyers that their challenge to Mueller’s jurisdiction is “a fair point with respect to the future.”
Manafort’s former business partner, Rick Gates, who also joined the Trump campaign, was accused of similar crimes. He has agreed to become a cooperating witness for the Mueller investigation. In return, Mueller allowed Gates to plead guilty to reduced charges of one count of conspiracy against the United States and one count of making false statements to FBI agents.
ROSENSTEIN TURNS HOSTILE
FBI and Justice Department officials, including Rosenstein, claim that his August order contains information so sensitive to national security that it cannot even be shown to a federal judge and members of Congress with top security clearances. Until last week, these officials had been able to keep the most sensitive documents relating to the investigation secret from congressional oversight committees, as well as nosey judges such as Ellis. They have been using the time-tested tools of the government bureaucracy, namely resistance, delay, and redaction.
But when it became clear that the House Republican majority would no longer tolerate that approach, Rosenstein became openly hostile. He accused congressional Republicans of using “threats” of citations of contempt and impeachment in order to “rummage” through secret Justice Department documents. He ignored the fact that congressmen have a constitutional mandate to oversee the actions of the Justice Department as part of the executive branch of the federal government.
At about the same time, the New York Times published a story based on a leak which said that “Rosenstein and top FBI officials have come to suspect that some lawmakers were using their oversight authority to gain intelligence about [the special counsel’s] investigation so that it could be shared with the White House.”
According to Wall Street Journal columnist Kimberly Strassel, this was a smokescreen intended to conceal the fact that Rosenstein and the Justice Department were evading a new demand from the House Intelligence Committee, first contained in a secret letter and followed up with a subpoena, demanding more documents which would reveal the underlying bias of the FBI’s investigation.
The Justice Department’s rejection of the new House request was apparently what prompted President Trump to issue another tweet last week blasting the department for failing to cooperate with congressional demands for documents.
The day after the leak about Rosenstein’s suspicions appeared in the New York Times, the Justice Department released its own letter seeking to justify the rejection of the demands by the House committee regarding a “specific individual” by claiming to that to do so risked “potential loss of human lives, damage to relationships with valued international partners, compromise of ongoing criminal investigations, and interference with intelligence activities.”
The letter claimed that the decision to withhold the requested documents had been made after consultation with the White House, though a Trump tweet made it clear that he wanted the Justice Department to find a way to comply with the committee’s request.
NATIONAL SECURITY EXCUSE LOSING ITS CREDIBILITY
The now familiar claims by the Justice Department and the FBI that Republicans’ requests for key investigation-related documents and information must be denied for the sake of national security have lost their credibility. Since the Russia probe began, it has invariably been the case that when the disputed information finally came to light, the only thing it compromised was the reputations of the bureaucrats who had been trying to hide the facts from Congress and the American public.
For example, when the FBI, under pressure, finally agreed to release the “secret” memos that were leaked to the New York Times by Comey after Trump fired him as director of the FBI, all they revealed was that Comey had little basis for claiming that Trump was guilty of obstructing justice. It was also due to the insistence by Senator Chuck Grassley that dossier author Christopher Steele be referred for a criminal indictment referral that we learned the extent to which Steele’s unverified accusations were foisted upon the FBI and State Department at the behest of their officials who were also working as agents of the Clinton campaign.
Comey’s recently published memoirs, and the self-serving public statements he has made on his current book tour, are inconsistent with his previous testimony to the House Intelligence Committee about the FBI’s investigation of Michael Flynn.
FBI HID CRITICAL INFORMATION FROM FLYNN’S ATTORNEYS
Under extreme financial and legal pressure from Mueller’s team, Flynn agreed to plead guilty in federal court to lying to its investigators. But Flynn’s defense lawyers were not informed that the FBI investigators who had interviewed Flynn had initially believed that he was telling them the truth. On his book tour, Comey has said that isn’t true, but Republicans on the House committee say he told them a different story when he testified to them under oath, and say so in a section of a recently issued House Intelligence Committee report.
The report cites the opinion of then-Deputy FBI Director Andrew McCabe about how Flynn behaved under questioning. “Deputy Director McCabe confirmed the interviewing agent’s initial impression and stated that the ‘conundrum that we faced on their return from the interview is that although [the agents] didn’t detect deception in the statements that he made in the interview … the statements were inconsistent with our understanding of the conversation that he had actually had with the ambassador.” McCabe had also acknowledged that “the two people who interviewed [Flynn] didn’t think he was lying, [which] was not [a] great beginning of a false statement case.”
Crucial sections of the House committee’s report are indecipherable because of the 300 redactions which the Justice Department made before releasing it. The Justice Department claims that redactions were made under the supervision of the Office of the Director of National Intelligence (ODNI), but that agency’s policy is to defer to the wishes of the agency that “owns” the material, which, in the case of the House committee’s report is the FBI. Republicans on the committee claim the FBI’s story that the redactions were made to protect classified material is bogus, and that their only purpose is to obscure the fact that Comey and Mueller did not have sufficient reason to accuse Flynn of lying to FBI investigators, and pressuring him to plead guilty to that crime they knew at the time he probably did not commit.
MORE DISGRACED FBI OFFICIALS RESIGNING
Efforts to try to hide the extent of the collusion by senior FBI and Justice Department officials in an effort to discredit Trump and his advisors come too late. Last week, FBI lawyer Lisa Page and its former chief counsel, James A. Baker, joined former deputy director Andrew McCabe in resigning from the agency with their professional reputations in ruins as a result of the parts they played in the anti-Trump FBI plot.
Despite their disgrace, the FBI is still trying to protect them, as was made clear in a letter from an FBI official to Senator Grassley admitting that the agency did not require Page to turn over the messages she sent using her personal email account to Strzok before leaving. The discovery of their email correspondence describing how they plotted together against Trump, which had been sent using government devices and accounts, was one of the first indications of the depth of the “deep government” pro-Clinton, anti-Trump plot in the FBI.
Baker is the suspected source of many of the leaks to the press of accusations against Trump which originated in the Steele dossier. But after Baker’s resignation last week, James Comey came to his defense.
Comey issued a statement claiming that Baker “represents the best of the Department of Justice and the F.B.I. He has protected the country and the rule of law throughout his career and leaves an inspiring legacy of service. He is what we should all hope our kids become, a person of integrity.”
MORE REVELATIONS ON THE WAY FROM THE IG
More resignations are sure to come when additional reports by Justice Department Inspector General Michael Horowitz are released in the weeks and months ahead.
One of the reports is likely to reveal who was behind the FBI’s “kid gloves” handling of the investigation into Mrs. Clinton’s email server. We already know that then-attorney general Loretta Lynch instructed Comey to avoid using the word “investigation” in an effort to conceal the criminal nature of that investigation from the public, and that he knowingly complied. Hopefully, the IG’s report will reveal who else in the Obama administration was behind the unusual decision not to convene a grand jury needed to issue subpoenas that would force witnesses to testify in the email case. That alone, according to FBI veterans, guaranteed that the investigation would result in a whitewash of Clinton’s guilt.
Another IG report will explore how the bogus Steele dossier was submitted as evidence by the FBI to a FISA court to justify a warrant for the surveillance of the Trump campaign through his adviser, Carter Page. The FBI renewed that warrant application several times, but never informed the FISA court that the unverified “evidence” against Page was based upon Russian sources, and had been paid for by the Clinton campaign.
FLYNN’S NEW JUDGE ORDERS PROSECUTORS TO COME CLEAN
The evidence suggests that the unfair prosecution of Flynn was another example of Comey and Mueller exceeding their legal authority based upon the principle that the ends justify the means. They believed they could pressure Flynn into “flipping” and becoming a witness against President Trump.
After Mueller’s team forced him to the brink of financial ruin, and threatened to indict his adult son, who was a partner in Flynn’s consulting business, Trump’s former national security advisor was forced to plead guilty last December to one count of lying to federal investigators. But the case stalled a few days later when the federal judge on the case, Rudolph Contreras recused himself, reportedly because Contreras was one of the judges who had approved the controversial FISA court surveillance warrant against Carter Page. In fact, emails between Lisa Page and Peter Strzok suggest that they colluded with Judge Contreras who was a party to their anti-Trump conspiracy.
Contreras was replaced by Judge Emmet Sullivan. His first move was to order Mueller’s team to turn over to Flynn’s defense lawyers “any evidence in its possession that is favorable to defendant and material either to defendant’s guilt or punishment,” including “any information which is favorable to the defendant but which the government believes not to be material.”
In February, Judge Sullivan augmented that order by instructing Mueller’s team to turn over to Flynn’s lawyers any evidence which might indicate that Flynn was innocent which was in their possession during Flynn’s plea bargain negotiations. According to an article in The Federalist by conservative lawyer Margot Cleveland, the second order suggests that Judge Sullivan would consider a move by Flynn’s lawyer to withdraw his guilty plea because they were not informed that the FBI investigators initially believed that Flynn was telling them the truth.
Judge Sullivan also ordered a 60-day delay in Flynn’s sentencing to give his lawyers a chance to rethink their strategy. The new sentencing deadline was set for May 1, but last week Mueller’s team asked for another 60-day delay, which suggests that the prosecutors fear that their plea bargain with Flynn may not hold up.
MUELLER’S RUSSIAN INDICTMENTS GOING NOWHERE
Yet another finding of Mueller’s probe, which led to the highly publicized criminal indictments against 13 Russian nationals and three Russian corporate entities in February, appears to be hung up on unexpected legal technicalities.
Concord Management is one of three Russian companies owned by Yevgeny Prigozhin, a close Putin associate. They ran an aggressive social media operation out of the Russian city of St. Petersburg to influence the 2016 presidential election by spreading disinformation to American voters. The company’s lawyers claim that Mueller’s prosecutors never served them with proper legal notice of the charges against the company. They are also demanding that Mueller’s team turn over all of their surveillance records on the company’s executives and employees.
Mueller’s team admits that it relied on the Russian Prosecutor General’s Office to provide the legal notification to Concord Management, and the failure of the Russian agency to cooperate should have come as no surprise.
The admission is doubly significant because the February indictments of Russian individuals and companies had been the only legal action Mueller’s team had taken to date related directly to Russian interference with the 2016 election.
The initial hearing for the case against Concord Management in federal court had been set for May 9, but Mueller’s prosecutors admitted last week that without an assurance of cooperation from Russian officials, the case might have to be postponed indefinitely. The judge in the case rejected the government’s request for a delay in the hearing.
When Mueller first announced the indictments of the 13 individuals who were still living in Russia, it was obvious that none of them would ever come here to stand trial in an American court.
Now it is also clear that the charges against the three Russian companies were nothing more than public relations window dressing for Mueller’s team. Justice Department officials did not expect the American lawyers for one of the Russian companies to challenge the indictment, and force the Mueller’s team to turn over sensitive details of that aspect of his investigation.
PUTIN GOT AWAY WITH IT AGAIN
The Mueller team’s confirmation that there was an organized Russian effort to influence the outcome of the 2016 election added a significant amount of detail about the operation, but did not come as a surprise to anyone. The Clinton campaign had begun publicly accusing the Trump campaign of colluding with the Russians when hacked emails from the DNC began to appear in the early summer of 2016. The Obama administration formally confirmed the charges of Russian interference on Trump’s behalf shortly after the election took place. Obama then imposed diplomatic sanctions on Russia, including specific individuals close to Putin who were known to be involved. But by then, the damage had been done. The sanctions were largely a symbolic slap on the wrist, and Putin was allowed to get away with the most brazen act of sabotage against the US homeland since the 9/11 attack.
Mueller’s team has failed to fulfill to carry out its original mission. While it has raised plenty of public controversy and served as a major distraction for the Trump White House, it has made no real progress in bringing any of the individuals and entities responsible for the Russian interference in the 2016 election to justice.
Paul Manafort and Michael Cohen, are the only individuals close to Trump who have been indicted thanks to Mueller’s efforts, accused of crimes totally unrelated to the allegations of collusion with Russia, which was the justification for launching the investigation.
Mueller’s lack of any significant progress has not prevented him from pushing on in his quest to find evidence that could be used to destroy Trump’s presidency. Most of Mueller advocates have largely given up hope that he will uncover smoking-gun evidence of Trump’s collusion with the Russian, and legal experts have grave doubts that Trump could ever be accused of obstruction of justice in a court of law.
TRUMP’S ENEMIES RALLY TO PROTECT MUELLER
Yet the Mueller probe continues, steadily expanding its scope under the legal authorization of Rod Rosenstein, who was empowered by Sessions’ recusal last year to permit Mueller to investigate anything he wants to. Trump’s political enemies still hope that Mueller might yet find a suitable pretext for the president’s removal from office by impeachment.
Democrats and Republican “never-Trumpers” are running ads calling for Congress to pass legislation to “protect the Mueller investigation.” Even Republican senators Lindsey Graham and Thom Tillis are publicly warning Trump against creating a “constitutional crisis” should he dare to fire Mueller or Rosenstein for exceeding their authority by supporting a runaway investigation aimed at overturning the results of the 2016 presidential election.
Last week, the New York Times published more than forty questions which Mueller supposedly wants to ask Trump under oath. Trump’s private legal team, now led by Giuliani, called the questions unacceptably broad and wide ranging.
GIULIANI WARNS TRUMP ABOUT MUELLER’S “PERJURY TRAP”
In an interview with Fox News commentator Sean Hannity, Giuliani said, “these are all questions intended to trap him [Trump]. Every lawyer in America thinks he shouldn’t” grant Mueller such an interview. Giuliani says he would demand that Mueller submit a limited list of questions in advance, and keep the interview to less than three hours, simulating the conditions which the FBI agreed to when it questioned Hillary Clinton over her email server in 2016. Without such legal safeguards on the interview, Giuliani warned, Trump would be exposing himself to a “perjury trap.”
Last Friday, Trump told reporters once again that he would “love to speak” to Mueller, and that there is “nothing I want to do more, because we did nothing wrong.” But then Trump added that first, “I have to find that we’re going to be treated fairly. … Right now, it’s a pure witch hunt.”
Mueller’s questions indicate that he has not uncovered any evidence to support allegations that Trump’s campaign colluded with the Russians, or that the president tried to obstruct the investigation. The legal danger to Trump is that in trying to answer Mueller’s questions truthfully, he might inadvertently say something that incriminates him. More likely, Trump could get into trouble by contradicting the testimony of another witness whom Mueller’s team has already interviewed.
The 2007 conviction on perjury charges of former Vice President Cheney’s chief of staff, Scooter Libby, who was the innocent victim of a special prosecutor investigation which was allowed to run amok, illustrates the legal dangers that Trump would face by agreeing to an open ended interview with Mueller.
THE ANTI-TRUMP DREAM SCENARIO
If Mueller could catch Trump over an inconsistency in his testimony, he could accuse the president of lying justifying a recommendation by Mueller to Congress to launch impeachment proceedings. Democrats and Republican “never Trumpers” have been dreaming of that scenario ever since Trump won the 2016 election. To succeed, the strategy would require that Democrats recapture a majority in the House willing to vote to hold an impeachment trial against Trump in the Senate. Even though it is highly unlikely that Trump’s enemies could muster the two-thirds majority of the Senate vote needed to remove him from office, the trial would effectively consume the last two years of Trump’s first term as president.
Mueller’s team had been negotiating with Trump’s private legal team, led by Ty Cobb, who had hoped to be able to work out an equitable agreement on an interview with the president. Mueller told Trump’s lawyers in March that if they failed to reach an agreement on a voluntary interview, he would issue a subpoena to compel Trump’s testimony.
Last week, Trump announced a significant change in his legal team. Cobb is being replaced by Emmet Flood, who obtained the relevant experience by defending Bill Clinton while Giuliani who was a federal prosecutor in Manhattan before becoming mayor, would provide strategic legal advice and serve as the new spokesman for Trump’s legal team.
GIULIANI’S EVOLVING STRATEGY
Giuliani quickly established a much more aggressive legal stance against Mueller’s demands. He dismissed the charges of collusion with Russia as totally unproven. He also said that Trump did not fire James Comey as FBI director to obstruct the Russian investigation, but rather because Comey refused to say publicly what he told Trump privately, that the president was not a target of the investigation.
In an interview with ABC’s George Stephanopoulos, Giuliani was asked if he would urge Trump to answer Mueller’s questions. Giuliani’s response was, “Not after the way they acted. I came into this case with the desire to do that, [but] they [Mueller’s team] keep convincing me not to do that.”
Talking about the accusations against Trump, Giuliani said, “They don’t have a case on collusion. They don’t have a case on obstruction, which is why they’re asking all these cockamamie questions. . . So you think. I’m going to walk him into a prosecution for perjury?”
KEEPING TRUMP “OUT OF THE LION’S DEN”
Giuliani said that he had also initially been inclined to agree to an interview that was limited to the circumstances surrounding the firing of James Comey. “But if we came to the conclusion they have already made up their mind and Comey is telling the truth — that is a joke, Comey hasn’t told the truth in years — then we would just be leading [Trump] into the lion’s den,” Giuliani said.
Giuliani also claimed that Trump could not be forced to submit to a subpoena requiring him to testify before Robert Mueller’s team. “He’s the president of the United States. We can assert the same privilege as other presidents have. President Clinton negotiated a deal in which he didn’t admit the effectiveness of the subpoena. [The prosecutors ultimately] withdrew it.”
WHY A PRESIDENT SHOULD NOT HAVE TO TESTIFY
President Trump also believes that as president he should not be subject to a subpoena unless a prosecutor like Mueller can present strong evidence in support of his request to question the president.
On Friday, Trump cited an article in the National Review, written by former assistant U.S. attorney in New York, Andrew McCarthy, who has criticized the legal grounds for appointing a special counsel to investigate the charges of collusion with Russians. More recently, McCarthy has criticized Rod Rosenstein for permitting Mueller to overstep the original limits set for the investigation. McCarthy argues that any attempt by Mueller to subpoena Trump’s testimony would be inappropriate.
As McCarthy explained to conservative talk show host Mark Levin, “not only should a prosecutor not be permitted to subpoena a president by a court, I don’t think the Justice Department should allow a president to be even asked voluntarily to submit to an interview in the absence of evidence that there’s a serious crime that the president is complicit in and indication that the only way that you could get the evidence that the prosecutor can show is vital to the case is through the president.”
MUELLER HAS NOT EARNED THE RIGHT TO QUESTION TRUMP
In this case, as the chief executive of the United States, Trump has the right to assert his executive privilege which overrules the power of the subpoena to compel his testimony except when there is clear evidence that a serious crime has been committed and only the president’s testimony can resolve the issue.
McCarthy argues that Mueller’s investigation has fallen short of that well-established legal standard. He has found no evidence that criminal collusion between the Trump campaign and the Russians to influence ever took place. Nor is there any evidence that Trump tried to obstruct the FBI investigation by firing Comey.
Trump’s brief mention of Michael Flynn’s plight in a private conversation with Comey was a legitimate request from the president to the FBI director to apply his prosecutorial discretion in that case. It was clearly not an inappropriate presidential order for Comey to squelch that investigation, as Trump’s critics have suggested.
McCarthy condemns the thick cloak of secrecy which, in this case, prevents the public from understanding the crime which sparked the investigation. “In every other independent-prosecutor investigation in modern history — Watergate, Iran-Contra, Whitewater — the president and the public have known exactly what was alleged.”
McCarthy points out that, “the question of whether a prosecutor should be permitted to interview a president hinges on whether the president is a suspect. There is no public evidence that President Trump is. This raises the patent objection that he should not be asked to be interviewed under those circumstances.”
With respect to the question commonly posed by Trump’s foes, “How do you know he’s not a suspect?”, the answer is that after two years of intense investigation, Mueller’s team has failed to produce any clear evidence that a crime was even committed. In those circumstances, any president, McCarthy argues, should have a right to the presumption of innocence, whether individual citizens like him and agree with his politics, or not.
But Trump’s political and media enemies have invested too much in trying to discredit him to give up the effort now. They are pressing Trump to answer Mueller’s tricky questions in the hope that he will hand them evidence to incriminate him which Mueller and his team have been unable to find so far. This appears to be Mueller’s best remaining hope for achieving his goal of engineering the president’s downfall.