Trump needs to confront, not appease, Mueller’s posse
Trump likely would win a Supreme Court fight over attempts to compel his testimony, and it could be the spark Republican and Trump voters need to turn out in November 2018.
I’m still shaking my head in disbelief at Rudy Giuliani’s idea that if Robert Mueller and his team agreed to wrap up the “obstruction” investigation by September 1, Trump would sit for an interview.
I covered this development in my prior post, Rudy’s terrible, horrible, no good idea about Trump sitting for a Mueller interview to speed things up:
[Refusing an interview] is such a no-brainer, I’m really worried Rudy Giuliani, who is Trump’s new key legal advisor, will screw it up. At least as reported, it appears that Rudy is doing just that, and has suggested to Mueller that any interview would be contingent on an end date to the investigation….
This is a horrible idea on so many levels. It will not even wrap up the Russia investigation. It will end nothing.
If Mueller wants Trump to sit across the table from him and answer questions, he should have to fight for it, and Trump should fight back. To the Supremes if need be. This is about the survival of Trump’s presidency which is being pursued by Mueller’s posse of hired guns….
In news of other horrible ideas, I plan on a Legal Insurrection “Swimming with the Sharks” trip just before which I will throw some blood in the water to see which way the current is moving.
The best I can make of Rudy’s move is that it’s not serious. That he was just floating an idea that will go nowhere. I wish I had confidence in that spin.
If Trump refuses an interview, Mueller’s only choice would be to subpoena Trump to testify before the grand jury. I think Trump would win a Supreme Court battle over such a subpoena unless Mueller could show a compelling need for information that only is in the possession of Trump and only could be obtained via live testimony.
Ted Olson explains why this is the likely outcome in a column at The Weekly Standard:
Can special counsel Robert Mueller require President Trump to testify before a grand jury? It would be unprecedented, and his effort to do so could lead to a major constitutional confrontation….
The president is not “above the law”; there are many court decisions saying so. But the Constitution is part of the law, and it makes the president the sole repository of the executive power of the United States. He is therefore not just like any other citizen.
As things now stand, Mueller has not made, or even attempted to make, a record to explain why he would be justified in invoking the power of the judiciary to compel the president to show up before a grand jury—without a lawyer—and answer whatever questions Mueller and his army of prosecutors may put to him.
Two Supreme Court decisions have been cited by some commentators as precedents authorizing compulsive judicial authority to force a president to testify before a grand jury. But neither case goes nearly that far. Indeed, both decisions are explicitly limited to the unique circumstances that gave rise to them….
…While the president’s presumptive privilege against compulsive testimony would be entitled to considerable deference, that claim could be overcome if the prosecutor makes a strong showing that he must have specific essential evidence that is not procurable from other sources and that he is not simply engaged in a fishing expedition.
That’s a fight Trump needs.
Appeasing Mueller through cooperation over document production has achieved nothing so far. Such document cooperation was the correct decision, but has not satiated Mueller’s team in the least. Mueller takes an expansive view of his jurisdiction, extending to investigating persons associated with Trump’s campaign in some way in the hope of finding a crime. This is an attempt to criminalize Trump world either directly (Manafort) or indirectly (Cohen via the SDNY US Attorney’s Office).
There are almost daily reports that Mueller has expanded his investigation geographically as well, probing alleged campaign ties to Middle Eastern countries and persons.
The world currently is Mueller’s oyster, and he’s enjoying the meal too much to be trusted. An interview is a trap, plain and simple.
Particularly if Trump offers to answer questions in writing, Mueller would be hard pressed to justify dragging the President before a Grand Jury.
Trump needs to confront Mueller’s investigation, not try to appease it. The fight Trump needs is to refuse to be interviewed by Mueller, or to appear before a Grand Jury if Mueller subpoenas him.
The public will back Trump on this. The investigation, which once had overwhelming support, not is viewed by most as politically motivated. If Trump has fully cooperated on document production, and in light of dozens of White House and campaign personnel having been interviewed, and attempt to drag Trump in front of a Grand Jury almost certainly would be viewed as a political move.
A fight with Mueller coming on the cusp of the midterms also would benefit Republicans. It would motivate Republican and Trump voters, in an election cycle where motivation is Democrats’ best advantage.
Confronting, not appeasing, Mueller’s posse is a winning strategy. Trump should take it.
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Comments
Right on. Unless this is a planned rope-a-dope, I don’t think Rudy is helping. I thought the last guy was replaced because he was to appeasing, Rudy seems to be doing the same, just in a more confused way.
Rudy is a fraud, perhaps unknowingly. I keep saying Trump direly needs a battle-tested, wartime consigliere, totally tough and wise on all Swamp matters. If Trump gets one, Trump can rout these usurpers. If he doesn’t,I hazard to speculate. Any ideas as to who could fill that role?
I think Giuliani is there because he knows the players on the other team. Particularly the “go-to” people Mueller seems to be using in the Southern District of New York.
Rudy probably has the confidence of most if not all of the SDNY support staff as well. They’re the ones that do most of the real work.
Pres. Trump needs Mark Levin!
I hope, beyond hope, that Trump takes your advice, not Rudy’s.
Mueller needs to be told to pound sand.
And he’s not the only one.
I would love to see Trump launch an all out assault on all this crap. Surely the scope of what has been pulled merits a RICO prosecution.
Heh. Trump has “demanded” an investigation on whether the DOJ and FBI surveilled the Trump campaign for political purposes.
CNN claims this is a “Constitutional Crisis.”
They seem to have forgotten that Obama ordered the investigation into the Ferguson case, into the email hacking case, into the alleged Russian hacking of the 2016 election, into an Afghanistan massacre, the Fort Hood murders, into the Justice Department’s seizure of Fox News emails and AP phone records, the Anthrax case, the Guatamalan Syphilis Experiment, the potential skewing of intelligence assessments re Iraq, the Fast & Furious program, a shooting in Chattanooga, Tenn.
One could almost get the impression that the President of the United States routinely orders investigations of controversial cases.
But why is he demanding, not ordering?
Re: Milhouse:
This is why, all other things being equal, it’s better to have a president with a legal background than not.
Trump is “demanding” instead of “ordering,” because he lacks confidence in his knowledge of the extent of his authority and powers. And whomever is advising him is advising him with a constricted view of those powers instead of a robust one, consistent with the framers’ intentions.
Trump needs a legal education, stat!
And Giuliani is making an absolute mess of things. He was a GREAT mayor, but as a lawyer -strategist, he’s almost as bad as me in litigation, and that’s saying something.
Perhaps because he isn’t a Democrat President and the MSM will scream obstruction (or whatever) for at least a month, or until Kim Jong Un meets with Trump and agrees to give up his nukes, whichever comes first.
The appointment of Herr Mueller, given the extraordinary powers he apparently has, might very well be unconstitutional. There is a compelling article regarding this. If this is truly the case, then everything he has gotten, and all his indictments are null and void, as is the information to the SD as it is fruit of the poisoned tree.
Trump truly needs to find a lawyer who is far better than Rudy. His advice and talk is not helping his client, it is only giving Rudy a chance to grandstand. And it could be at the expense of the President.
Yes, it might very well be.
This does not follow. The exclusionary rule is not required by the constitution, and was unknown until the 20th century. It’s just a rule courts adopted. For very good reasons, but it’s still just that.
Rudy’s floor show worked well in NYC. DC is not NYC.
Funny to quote Ted Olsen. The most on point case is Morrison v. Olsen which upheld the appointment by the Courts of Independdent Counsels.
However, this case is different. Mueller if he subpoenas Trump to testify would clearly be targeting the President criminally as a precursor to impeachment. Impeachment is a plenary power of Congress. It is constitutionally suspect to allow an executive branch employee whose appointment was not approved by Congress to be a stalking horse for impeachment.
In this instance POTUS would be on solid legal grounds to even disobey a Supreme Court decision. There are limits to the Courts power. Congress would settle the matter via the constitutionally provided mechanism: impeachment. The likely result would be the failure of the Senate to convict if impeachment were tried and a significant diminution of the Courts power and standing.
Re: CountryLaw:
THIS.
THIS is what we need. This blurring of branches disserves our nation.
For those of us who fervently believe a District Court can order: “<i<any and all other relief the Court deems just and proper in the circumstance" I have a thought exercise. Assume for argument that the counting of electoral votes is a plenary power of Congress and cannot be challenged in any other forum.
Suppose a District Court Judge in San Francisco ordered Trump removed from office and Hillary Clinton sworn in as President of the United States. Should the President leave office? Should he appeal? Should he order the arrest by the military of the District Court Judge?
None of the above. The judge would be ultra vires, and the president should ignore him.
You are correct. The judge would be ultra vires. Ignoring the Court(s) is one possible response.
“John Marshall has made his decision now let him enforce it.”
I believe it’s time for bold measures. The people who WISH TO SEE, can see Mueller’s game for what it is.
The rest are never going to see anyway.
Time to be bold, and END this thing, and NOT let bygones by bygones, and prosecute to the extent possible those in the DOJ and FBI that suborned the law for their political ends.
Letting them get away with these massive sins against the Republic will only mean future evil-doers will feel free to do more evil. Deterrence serves an important purpose.
He needs a Ted Olson, he tried but he wouldn’t do it. Conflict of interest
I think that was an excuse
Great post, thank you!
I have a dumb, non-lawyer question: Exactly what is a “constitutional crisis?” I’m seeing the term several times every day now, but I’ve never seen a clear definition.
A “constitutional crisis” occurs whenever a Republican President uses his constitutionally granted powers, even once, that a Democrat President wielded daily and without discretion.
A “constitutional crisis” can also occur when a president, or some other body granted limited, enumerated powers by the Constitution, exercises powers it does not have under said Constitution. But these types of “constitutional crises” are almost never identified as such.
So, a constitutional crisis is when there’s ambiguity about whether a party taking an action has the constitutional power to take that action? And whether the action is, therefore, legitimate?
Ted Olsen writes:
“While the president’s presumptive privilege against compulsive testimony would be entitled to considerable deference, that claim could be overcome if the prosecutor makes a strong showing that he must have specific essential evidence that is not procurable from other sources and that he is not simply engaged in a fishing expedition.”
This “specific essential evidence” that could overcome executive privilege could easily be fleshed out by a series of narrowly crafted written questions. If this is not acceptable to Mueller, then it’s clear that Mueller wants nothing other than a fishing expedition.
No, all that Mueller is trying to do is set up a perjury trap. For example, Mueller can ask Trump what happened and who said what in those meetings with Comey.
Trump’s version will contradict Comey’s. We all know that already. So does Mueller. McCabe got fired because his version of events conflicted with Comey’s, right?
So, we already know there’s a contradiction with Comey’s version and Trump’s. As soon as Trump contradicts Comey (or anyone else) then Mueller can charge Trump with giving a false statement, or perjury–not because it’s false, but because someone else (Comey) gave Mueller a statement that contradicts Trump’s. That’s ALL Mueller needs to refer charges. Proving those charges is another matter–but this whole shindig isn’t about proving anything.
While I’m sure that the intent is a perjury trap, it won’t be on a he said – he said situation. Absent recordings of the conversation(s) with Comey, there is no way to prove which recollection of the conversation’s content is correct. Comey’s self-serving 302s (or Memo to File if he skipped using the formal form), which he illegally kept from being filed as the government records which they are, not proof of the content of the conversation. They would have some probative value if Comey were a neutral observer/investigator, but he’s proven he is not.
That’s how they got Scooter Libby. His version of some inconsequential event contradicted a journalist’s recollection of what Scooter had told the journalist. They charged Libby and the jury believed the journalist.
All about nothing because Plame was unmasked by Armitage, not by anyone in the Bush white house.
When Rudy’s name came up as a potential candidate for AG, wasn’t there talk of him not having all his marbles as a consequence of his age? Maybe we’re seeing evidence of this?