Of Course Trump Should Avoid Talking To Mueller Voluntarily and Take the Fifth If/When Subpoenaed
"If you're innocent, why are you taking the Fifth Amendment?" Donald Trump once said. He may be about to find out.
As Robert Mueller's investigation continues into possible collusion between the Trump administration and Russians seeking to influence the 2016 election, I've got some free legal advice for the president of the United States: Don't talk to this guy voluntarily and, if subpoenaed, take the Fifth like a dime-store mafioso without batting an eye.
I write as a non-lawyer and as a non-fan, non-hater of Donald Trump. I write as someone who is seriously worried about the ways in which law enforcement routinely screws people not by catching them red-handed in a crime but by nailing them on things that are criminal-adjacent rather than the crime itself. I write as someone deeply concerned about factions within the government using largely uncontrollable powers to dispatch enemies.
If there's one thing even more foolish than a lawyer who takes himself as a client, it's anyone who freely talks to law enforcement when they can avoid it (which Trump can). As defense attorney, former federal prosecutor, and influential legal blogger Ken White wrote recently at Reason:
When the feds interview a subject or target, their goal is not mere information-gathering or fact-finding or "clearing a few things up." Their goal is the hunt….
The purpose of the "hunt" is to catch witnesses in a lie that may or may not really matter much to the larger issue at hand but will count enough to underwrite a conviction for, well, lying to law enforcement. That's what Trump associate George Papadopoulos got nailed for, and Michael Flynn too. Back in the day, that's what cost Martha Stewart her freedom (contrary to popular wisdom, her jail time had nothing to do with insider trading and more to do with defending herself in public). Once you've got someone on lying, obstructing justice, or anything else, you can then flip them to move up the pyramid to catch Mr. Big. Who in this case is Donald Trump.
When special counsels or FBI agents ask questions of one of these powerful people, they are not fact-finding. They've already done their homework. They've already gathered facts—almost certainly many more facts than the interviewee knows. They are asking questions the answers to which they can already prove, hoping that the interviewee will tell a provable lie, and thus commit a crime, or at least lock themselves into a feckless story that ties their hands later. The law that makes it a crime to lie to federal investigators does not require the lie to fool the investigators for a nanosecond. A lie must be "material" to be criminal, but that only means that the lie is the kind of statement that could conceivably influence the government, not one that actually did. The FBI can roll up with irrefutable proof of something, ask the target a question hoping for a lie, collect the lie they wanted, and reap a felony conviction.
Recall too that in the end it was Bill Clinton's lying and attempts to circumvent legal prosecution that got him into his most serious legal (though not political) trouble. There's no way to play nice with federal investigators and Trump has more leverage than any other person in America to push back and not participate, at least not voluntarily.
But what if Mueller subpoenas Trump to testify before a grand jury? That's a different matter than the president voluntarily sitting down for on-the-record talks (ones in which the compulsive blabbermouth and bullshit artist would doubtless produce enough contradictions, misstatements, and downright lies to keep him behind bars until The Rapture). It's not exactly settled whether a sitting president could refuse to comply with such a request in the current context. In Clinton v. Jones (1997), the Supreme Court said that Bill Clinton did have to testify, but that was a civil case (there were arguments at the time that his testimony could have been delayed if complying with court orders would have massively impacted his ability to serve as president). It seems likely that a president can be compelled to show up in a criminal matter, too, but that exact question has never been settled by the courts.
Earlier this year, Mueller reportedly was using the threat of a subpoena to get The Donald to voluntarily sit down with his team. Issuing one to the president wouldn't start a constitutional crisis per se, but it would mark what we might call a serious constitutional confrontation. Strip Trump out of the equation and this sort of legal investigation starts to look more and more like a Star Chamber proceeding, in which the president and his associates are going to get nailed on all sorts of semi-serious crimes and misdemeanors. You don't have to be Harvey Silverglate or Bernard Kerik to understand that it's a low-ball estimate to say that the typical American commits "three felonies a day." Mueller has effectively unlimited resources at his disposal and he knows how to use them.
The power to indict is no small thing, especially because it can so easily lead to convictions and pleas on charges that aren't the real focus of an investigation.
Mueller has issued hundreds of indictments and secured fistfuls of convictions, but none actually about, you know, collusion between the Trump campaign and Russia. Judge Dabney Friedrich of the U.S. District Court for the District of Columbia recently told Mueller's team to pound sand when it requested a delay in its case against Russian troll farms while another federal judge, T.S. Ellis III of the U.S. District Court for the Eastern District of Virginia, strongly rebuked Mueller's indictments regarding former Trump campaign head Paul Manafort. Manafort is starting an effective life sentence in the face based on dirt dug up during the Russia investigation, but none of the charges directly involve Trump or the 2016 election:
"You don't really care about Mr. Manafort," [Judge Ellis] said. "You really care about what information Mr. Manafort can give you to lead to Mr. Trump" and his eventual prosecution or impeachment.
"It's unlikely you're going to persuade me the special counsel has unfettered power to do whatever he wants," Ellis, who was appointed by Republican President Ronald Reagan, said at a hearing on Manafort's motion to dismiss the Virginia charges.
Let's assume that Mueller does indeed subpoena Trump to testify, or even just come in for a friendly little chat. What should the president do then? Refuse to answer anything on Fifth Amendment grounds. One of the most-distressing aspects of the chatter around the Mueller investigation is the idea that taking the Fifth is tantamount to an admission of guilt. Michael Cohen, Trump's personal lawyer who admitted to facilitating payments to the porn actress known as Stormy Daniels, has recently invoked his Fifth Amendment rights. A typical headline argues "Michael Cohen All But Admits Guilt By Pleading The 5th In The Stormy Daniels Case." Even Donald Trump falls into that argument, telling crowds during the 2016 campaign that Hillary Clinton's request for immunity when testifying about her email servers was an admission of guilt.
"If you are not guilty of a crime, what do you need immunity for?" Trump said at a campaign rally in Florida in September.
"The mob takes the Fifth Amendment," Trump said at a campaign event in Iowa later that month. "If you're innocent, why are you taking the Fifth Amendment?"
As in so many other things, Trump was wrong then but was right back in 1990 when he invoked his Fifth Amendment rights almost 100 times during his divorce trial from first wife Ivana. I'm sure that many of Trump's critics who are now saying that taking the Fifth means you're guilty were singing a different tune just a few years ago. When the embattled IRS official Lois Lerner took the Fifth, I don't remember many liberals saying that meant she was guilty. And many conservatives who are today saying the Fifth Amendment is the bulwark of democracy were doubtless singing a different tune in the past as well.
While taking the Fifth would be a public-relations nightmare for Trump (If you're innocent, why are you taking the Fifth Amendment?), no one is more suited to waging a P.R. battle via social media and the bully pulpit of the presidency. His base has shown again and again that they'll follow him down whatever sewer he's willing to take them. For god's sake, he got evangelicals to go all in despite being a thrice-married, pussy-grabbing libertine. Standing up to what is already being cast as an illegitimate deep-state attempt to pull down the greatest president since Lincoln (as Trump and his acolytes surely see it) would not just be a walk in the park but more fun than Trump has ever had with his pants on.
But like the Trump presidency itself, whether a protracted legal battle between the president and an independent investigation into his possible high crimes and misdemeanors would be good for the country is a very different matter. As noted, it wouldn't provoke a constitutional crisis as much as a confrontation. That sort of high-stakes game was bad enough during the Watergate fights over executive privilege and whether the president was above the law (he isn't, ultimately). Despite all the lies LBJ and Nixon told about the Vietnam War and other matters, public trust and confidence was, relatively speaking, extremely high both in the government and the media. In 1974, nearly 70 percent of Americans had a lot of confidence in the media. Today that figure stands at 42 percent. Despite (or because of?) all our gains in new media and platforms for expression, we trust the news we consume less and less, which will make coming to a common sense understanding of exactly what really did happen harder than ever to achieve.
Robert Mueller is a savvy guy and one who, despite his overzealousness at times, doesn't want to provoke a full-scale social-constitutional donnybrook. Trump could care less. Look for Mueller not to subpoena Trump but to put the screws to him in all sorts of other ways. I don't like that because it merely shows the nearly infinite power that federal law enforcement, including special counsels, have. If you care about fairness and equality in law enforcement, you've got to look on the Mueller investigation (and all the other effectively open-ended fishing expeditions that came before it, including Ken Starr's against Bill Clinton) with a jaundiced eye. And you need to also settle in your mind once and for all that taking the Fifth is not only not an admission of guilt, but a goddamned constitutional right every bit as much as religious freedom and not being forced to house soldiers during peacetime.
We need to have a serious conversation about what's wrong with American government and how to move into a new century (we're burning daylight in the 21st century so far, almost two decades in but it hasn't really started yet, has it?). But that's not going to happen via the Mueller investigation, Trump's Twitter spaz-outs, or constant partisan flip-flopping over using special counsels as a tool of political reprisal, taking the Fifth as a sign of guilt, or screaming bloody murder like a group of mental patients.
