Trump To Plead the De Facto 5th

on February 2, 2018 in Washington, DC.
Win McNamee/Getty Images North America

The Times is reporting that the President’s personal lawyers are recommending that he refuse to be interviewed or questioned by Robert Mueller’s investigators under any circumstances. Let’s be candid about what this means. The President is pleading the 5th while trying to avoid saying that’s what he’s doing. Let’s call it the de facto 5th. The constitutional law is clear cut. It’s not at all hypothetical. A sitting President has no blanket right to refuse to cooperate with a criminal investigation. Different dimensions of this question were litigated under Presidents Nixon and Clinton. The Courts were clear each time. The President has to comply with the law and with criminal investigations just like everyone else, though there may be certain areas of privilege. Presidents have been interviewed by special prosecutors, special counsels and independent counsels in numerous cases. The President is obviously guilty of obstruction of justice. He’s likely guilty of criminal conspiracy with a foreign power, though what if any statutes this would implicate is not clear to me. It makes perfect sense to refuse to talk. Perps do that all the time. It’s their right.

There are two notable points in the Times write-up of the story.

First, the President’s lawyers’ argument appears to be that the President is innocent of any crimes but that he is also a pathological liar. That could leave him vulnerable to a perjury charge. This isn’t my gloss. According to the Times, that’s their argument: “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.”

The other notable claim is that Trump’s lawyers and advisors believe that if Trump refuses a voluntary request for an interview, which is his right, Mueller might lack the nerve to subpoena him. “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.”

I think it’s very possible that Mueller would not indict the President, even if he believes he has clear and convincing evidence that he committed a crime. (While I don’t have entirely settled views on the matter myself, I actually think there are decent prudential, even not narrowly legal, reasons why a sitting President should be impeached before being indicted.) But I have a very hard time believing that if Robert Mueller believes questioning the President is necessary for his investigation that he won’t subpoena him. That seems quite out of character for the man and inconsistent with what we know about the investigation.

Really this shouldn’t surprise us. The President has gone to war with whole sections of the federal government to undermine the criminal probe which appears to be gathering vast evidence of his guilt. It’s total war. We lose track of how many things the President has done just in the last few weeks which were heretofore unimaginable and which all would be credible and robust grounds for removal from office.

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