By State Representative, Leon D. Young
President Donald Trump has said he’s “looking forward” to the prospect of sitting down with Special Counsel Robert Mueller. But privately, increasing members of Trump’s legal team are vehemently urging him to decline any invitation to talk to Mueller.
Negotiations are continuing. But constitutional law experts have already theorized that if the White House does choose defiance and Mueller responds with a subpoena, it would likely set up a high-stakes legal showdown — one in which the special counsel might have the upper hand.
A decision by the White House to reject Mueller’s request for a voluntary interview would signal a clear shift in the legal team’s game plan from reluctant cooperation to outright delay. From all indications, Trump’s legal team has been split as to its legal defense strategy. As illustrated by the fact that before his resignation, White House lawyer Ty Cobb had reportedly continued to argue for full cooperation while Trump’s private attorneys, Jay Sekulow and John Dowd, who was then leading discussions with Mueller’s office on the issue, were arguing against a sit-down interview.
Moreover, one could argue that Dowd’s subsequent departure raises new questions about the direction of Trump’s legal strategy and clearly signals a more aggressive posture on Trump’s part. As evident by the fact that before leaving the White House, Dowd had consistently urged the President to cooperate with special counsel Robert Mueller’s probe and resist attacking him publicly.
Trump has countered by bringing in some new minions to his defense effort who harbor a more aggressive approach. This, in turn, has paved the way for Trump to step up his attacks on the special counsel and has emboldened him to release his version of the kraken: Rudy Giuliani.
If Trump ultimately declines an interview with Mueller, things could escalate quickly, according to legal experts. Mueller’s team would likely issue a subpoena asking a court to compel the president to appear before the grand jury. Trump might then comply and take the stand, where he could take the politically risky step of pleading the Fifth or telling the jury he does not recall the answers to key questions.
More likely, Trump’s legal team would move to quash the subpoena, arguing that a sitting president shouldn’t be required to take time and resources away from his official duties to be questioned in an ongoing criminal investigation, and that Mueller’s queries extend beyond his mandate to investigate Russian interference in the 2016 election.
After a round of litigation in district court, the matter would likely then go to the D.C. Court of Appeals and all the way up to the U.S. Supreme court. History offers some pointers on the legal question of whether the president can be forced to testify in civil or criminal litigation. But past commanders-in-chief have either left office before doing so, as Richard Nixon did amid the Watergate scandal, or ultimately agreed to voluntary interviews, as Bill Clinton did with the Paula Jones sexual harassment case and George W. Bush did during the Valerie Plame affair.
The Nixon ruling makes it compelling for Mueller to obtain presidential testimony under the theory that nobody is above the law, which most legal experts think is sound legal precedent. But make no mistakes, there continue to be arguments that can and will be made that [special counsel] questioning can’t be open-ended and has got to be narrowly tailored in scope.
There is one thing we should all know now about Donald Trump; he only has one gear: attack mode. Trump thinks he knows everything; has never done anything thing wrong; and completely believes he’s above the law. It remains to be seen whether the two other branches of government (Congress and the Supreme Court) will hold him to task, if the situation arises.