The Supreme Court Will Make Trump Talk

Throughout his real estate career - and seemingly his entire life - Donald Trump has always demonstrated two traits: he lies incessantly and he views himself as above the law, the latter being evidenced by his questionable mob ties and cosiness with Russian mobsters, not to mention his repeated disdain for municipal and federal laws that get in his way.  Now, with the Mueller investigation apparently headed towards a showdown, Mueller's trump card - no pun intended - is to secure a federal grand jury subpoena for Trump to testify.  Given Trump's endless lying, nothing poses a bigger danger than Trump before a grand jury with no legal counsel at his side. The likelihood of perjury occurring is, in my view, almost guaranteed and would open yet another phase for prosecution of Trump.  Thus, the question becomes whether or not Trump can be forced to testify.  A piece in New York Magazine suggests that, if given the opportunity, the U.S. Supreme Court would rule that Trump must testify (and likely cause his own undoing in the process).  Here are article highlights:

Rudy Giuliani may have just made the case for why Robert Mueller, the special counsel getting to the bottom of Russia’s role in the last presidential election, has a real need to speak with Donald Trump. And it has everything to do with the president’s state of mind during a key moment under the microscope: the firing of James Comey, the former FBI director.

“He fired Comey because he would not, among other things, say that he was not a target of the investigation,” Giuliani told Fox News’ Sean Hannity late on Wednesday. . . . . So he fired him, and he said ‘I’m free of this guy.’”

United States v. Nixon, the landmark Supreme Court case that forced President Richard Nixon to comply with a prosecutorial subpoena to turn over the Watergate tapes, is still good law. And of all the important principles the decision stands for — beyond precipitating the fall of a sitting president — one that rises to the top is the American public’s interest in the fair and impartial administration of justice. The court system must be able to get a full picture of the facts of a criminal investigation. “To ensure that justice is done,” Chief Justice Warren Burger wrote for an 8-to-0 court, “it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.”

Nixon is controlling law for the Mueller investigation. And in light of reporting this week that the special counsel still has a keen interest in interviewing Trump — and an apparent willingness to rely on compulsory process — there is a distinct possibility that Mueller may go to court and invoke Nixon if [Trump] the president doesn’t cooperate, either voluntarily or in the face of a valid subpoena. That’s the kind of momentous confrontation that no doubt would quickly make its way to the Supreme Court, which so far has seemed willing to treat Trump just like any other president, rather than carve out Trumpian exceptions to presidential powers that may bind later chief executives.

Even if he’s not a target, courts may still determine that Trump is required to give the evidence that’s asked of him — especially in a probe where he may hold the key to many of its mysteries. “The need to develop all relevant facts in the adversary system is both fundamental and comprehensive,” the Supreme Court said in Nixon. “The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts.”

That’s precisely the state of affairs with a number of unresolved strands of the Russia investigation. We don’t know Trump’s frame of mind or what he knew when he fired Mike Flynn. We don’t know if he ever learned during the campaign that two of his family members and his campaign chairman wanted to obtain “dirt” on his rival from Russians during a meeting in Trump Tower. Or the reason he dictated the White House response to news reports revealing that the meeting took place. Or what he meant when he told NBC News’s Lester Holt that he dismissed Comey on account of “this Russia thing.” And what about his reported comments to Russian officials in the Oval Office, one day after Comey’s firing, that getting rid of the FBI director relieved “great pressure” from his presidency?

These are all open questions that are critical to Mueller and that only Trump can answer. And notice how all of these queries are far more focused than the broad, open-ended questions that Trump’s legal team leaked to the New York Times this week — not even Fox News’ Howard Kurtz buys the spin that these disclosures came from Mueller’s side.  . . . .[the] suggestion — that he [Mueller] remains on a never-ending fishing expedition — is just red meat for Trump’s base and a tactic to discredit Mueller’s work. Getting Trump’s direct testimony for a narrower set of interrogatories is Mueller’s way of tying up loose ends.

If Mueller can show that he has, as Nixon observed, a “demonstrated, specific need for evidence,” he’ll get it. The republic, the separation of powers, and the office of the presidency won’t crumble. The opposite may be true if the courts and the office of the special counsel are stonewalled by Trump and aren’t allowed to do their job.

Personally, I hope Mueller seeks a subpoena and soon.  It is far past time to put Trump in a box where he must testify and where, if he lies - a near certainty in my view - he will make matters far worse for himself.  I suspect Mueller already has information and evidence that he can use to catch Trump in his near certain lies.  Get out the popcorn.  

What Robert Mueller Already Knows

Image credit: Jasjyot Singh Hans

Despite the constant lies and shrieks of "fake news" coming out of the White House, the indictments handed down to date and the growing desperation on Donald Trump's part to stop the Russiagate investigation suggest that there is fire beneath the smoke seen to date. Add the list of questions Mueller may want to ask Trump - a list seemingly leaked by the White House itself or White House staff - and while the word "collusion" isn't used, some of the questions certainly dance  closely around the topic.  Add to this the rumor that Mueller may subpoena Trump - a situation which might force Trump to testify and, given his proclivity for lying - and set the stage for future perjury charges.  Remember Bill Clinton's lie under oath that set his impeachment in motion?  Lying about having sex with a woman pales in comparison to interacting with a hostile foreign government to throw a U.S. presidential election.  As an editorial in the New York Times notes, Mueller likely knows and can document the true answer to questions to be asked of Trump.  He also no doubt knows that Trump will lie under oath about those very issues just like he lies about virtually everything else. Here are editorial highlights:

The 49 questions that the special counsel, Robert Mueller, hopes to ask President Trump as part of the yearlong Russia investigation suggest that Mr. Mueller knows a great deal more than he’s letting on — and he hasn’t even gotten to the follow-ups yet.

After the questions, which were published by The Times on Monday, were provided to Mr. Trump’s legal team in March, John Dowd, the president’s lead personal lawyer at the time, urged him to avoid sitting for an interview with Mr. Mueller. When Mr. Trump said he intended to anyway, Mr. Dowd resigned.

Reading through the list, it’s clear why Mr. Dowd was so concerned. Federal investigators don’t like being lied to, and Mr. Trump has a marked tendency to say things that aren’t true. If he agrees to speak with Mr. Mueller’s team, he will have to answer some very basic questions about what he knew, when he knew it and what motivated some of his most shocking and inexplicable actions over the past year.

To name just a few: When and why did you decide to fire James Comey, the F.B.I. director, who was leading the Russia investigation at the time? What did you mean when you told NBC’s Lester Holt that you fired Mr. Comey because “this Russia thing with Trump and Russia is a made-up story”? Did you try to persuade the attorney general, Jeff Sessions, to protect you from the investigation? Did you secretly promise to pardon Michael Flynn, the former national security adviser who has pleaded guilty to lying to federal investigators about his communications with the Russian ambassador?

The questions are a reminder of just how aberrant this White House has been. No prior president so openly assaulted the rule of law or undermined the integrity of the law enforcement community.

It may unnerve Mr. Trump, who has spent his life skirting the law and avoiding full accountability, but this is how the law works. Without saying a word publicly, Mr. Mueller and his team of experienced investigators are showing America how a government premised on the rule of law is supposed to function. The process may seem slow, but that is out of diligence and caution. Its fundamental purpose is truth-seeking — unlike, say, the embarrassing obfuscations of the Republican leaders of the House Intelligence Committee, who last week absolved Mr. Trump and his campaign of any wrongdoing in a 250-page report that reads more like a work of fantasy than a government investigation.

Obstruction of justice is itself a federal crime — see, for example, Section 1505 of Title 18 of the United States Code — regardless of whether prosecutors can establish an underlying offense. Mr. Trump and his defenders mock it as a “process crime,” but the rule of law breaks down if people can interfere, with impunity, in law enforcement’s efforts to do justice. Don’t forget that both presidents who have faced impeachment proceedings in the past few decades, Richard Nixon and Bill Clinton, were accused of obstructing justice.

Mr. Mueller appears to have at least some evidence of an underlying offense. That is the implication of about a dozen of his questions, including the most surprising of all: Was Mr. Trump aware of any efforts by his campaign, and specifically by his former campaign chairman Paul Manafort, to seek Russia’s help in winning the 2016 election?

[I]t’s worth noting that as far back as August 2017, CNN reported that American intelligence services had intercepted communications among suspected Russian operatives discussing conversations they claimed to have had with Mr. Manafort, in which he requested their help in damaging Hillary Clinton’s election prospects.

Whatever information he has, Mr. Mueller, like any seasoned prosecutor, does not ask questions unless he already knows the answers. Whether or not Mr. Trump decides to talk to him, the rest of us will know, too, soon enough.

Trumps Attorneys: Refuse Russiagate Inquiry Interview

Apparently realizing that their client is a pathological liar and likely has something to hide - perhaps a very great deal to hide - Donald Trump's attorneys are telling him to refuse to be interviewed by Robert Mueller's Russiagate investigation team.  No doubt Trump's attorneys have visions of charges of lying to the FBI and/or damaging admissions.  Of course, should Trump refuse to voluntarily agree to the interview, he could find himself facing a grand jury subpoena which could set the stage for contempt charges if he ignores the subpoena or perjury charges if he lies under oath.  Another option is for Trump to appear before the grand jury and invoke the 5th Amendment and refuse to testify.  The political fallout of such an action, however, would be the assumption in the minds of many - perhaps a great majority - Americans that invoking the 5th Amendment is tantamount to an admission of guilt.  A piece in the New York Times looks at the tightening noose around Trump.  As Richard Nixon learned, even the occupant of the White House is not exempt from a grand jury subpoena,  Here are article highlights:

Lawyers for President Trump have advised him against sitting down for a wide-ranging interview with the special counsel, Robert S. Mueller III, according to four people briefed on the matter, raising the specter of a months long court battle over whether the president must answer questions under oath.

His lawyers are concerned that the president, who has a history of making false statements and contradicting himself, could be charged with lying to investigators.

Mr. Trump’s decision about whether to speak to prosecutors, expected in the coming weeks, will shape one of the most consequential moments of the investigation. Refusing to sit for an interview opens the possibility that Mr. Mueller will subpoena the president to testify before a grand jury, setting up a court fight that would dramatically escalate the investigation and could be decided by the Supreme Court.

Rejecting an interview with Mr. Mueller also carries political consequences. It would be certain to prompt accusations that the president is hiding something, and a court fight could prolong the special counsel inquiry, casting a shadow over Republicans as November’s midterm elections approach or beyond into the president’s re-election campaign.

The lawyers and aides believe the special counsel might be unwilling to subpoena the president and set off a showdown with the White House that Mr. Mueller could lose in court.

One of the few voices arguing for cooperating with Mr. Mueller is Ty Cobb, the White House lawyer whom Mr. Trump also brought on to deal with Mr. Mueller’s investigation. Since Mr. Cobb was hired in July, he has argued that the White House should do everything possible to cooperate with Mr. Mueller’s investigation.

Others close to Mr. Trump have also cautioned him against a freewheeling interview. Marc E. Kasowitz, the president’s longtime personal lawyer from New York who initially dealt with the special counsel after Mr. Mueller took over the Russia investigation last May, has also consistently said that the president should not agree to the interview.

Newt Gingrich, the former House speaker and an informal adviser to Mr. Trump, echoed that advice.   “The idea of putting Trump in a room with five or six hardened, very clever lawyers, all of whom are trying to trick him and trap him, would be a very, very bad idea,” Mr. Gingrich said last month on “Fox and Friends.”

Richard M. Nixon refused to turn over to the special prosecutor investigating him tapes of incriminating conversations with aides. The matter eventually went before the Supreme Court, which ruled in 1974 that the president, like every American, was not above the law and had to comply with the special prosecutor’s request.

“The upshot of the Nixon tapes case was that any president is going to have an extremely hard time resisting a request from a law enforcement officer,” said Neal K. Katyal, an acting solicitor general in the Obama administration and a partner at the law firm Hogan Lovells. . . . . running away from a prosecutor isn’t consistent with faithfully executing the laws.”

Mr. Trump’s penchant for bravado has been a factor that his lawyers must contend with. The president has bragged to some aides that he would be able to clear himself if he talked to Mr. Mueller’s team.

When pressed, he also said he would be willing to be questioned under oath. Questioning by Mr. Mueller would not be under oath, though lying to federal investigators is a crime.

Privately, people close to the president have conceded that assuring Mr. Trump that the investigation would end by a certain date was primarily aimed at keeping him from antagonizing Mr. Mueller on his Twitter feed or in interviews.

Trump needs to testify and if he lies (something that I view as a foregone conclusion), he needs to be charged with crimes and removed from office.