New Trump lawyer Rudolph Giuliani’s admission on Fox News this week (which Donald Trump promptly confirmed on Twitter) that the president had, in fact, repaid old Trump lawyer Michael Cohen for the $130,000 in hush money he gave to adult film star Stormy Daniels is, justifiably, getting a lot of attention among those who track the chief executive’s lies. But Team Trump’s effort to battle back on the question of a possible campaign finance violation on that front pales next to its all-out assault on reality in regard to Special Counsel Robert S. Mueller III’s investigation.
This week brought a flurry of revelations about Mr. Mueller’s efforts to secure an interview with President Trump as part of his investigation into whether the Trump campaign worked with Russia to interfere in the 2016 election — including a list of questions prosecutors likely want to ask and Mr. Mueller’s suggestion that he could resort to a subpoena if the president refuses to meet. But it has produced a blizzard of obfuscation, misdirection and misleading arguments from the president and his defenders, culminating in more tweets from the president Wednesday morning claiming the questions are “an intrusion into the president’s Article 2 powers” and suggesting, ominously, that “At some point I will have to use the powers granted to the Presidency and get involved!” But his indignation is built on the falsest of foundations.
The “disgraceful” leak
President Trump’s first tweet after the New York Times reported on a list of 49 questions Mr. Mueller wants to ask intimated that the special counsel’s office had been the source. The Times hasn’t identified a particular person as having provided the information, but it’s fairly clear that it wasn’t Mr. Mueller’s staff. The list wasn’t actually produced by the investigators but was written by Mr. Trump’s legal team based on conversations with them. The Times obtained them from yet another person. It would take a fevered conspiracy theorist to imagine that Mr. Mueller’s investigators described their questions to the Trump team, then obtained the list his lawyers compiled and leaked that to The Times.
“No questions on collusion”
Mr. Trump tweeted on that there were “no questions on collusion,” which he referred to as a “made up, phony crime.” He’s at least right about that last bit: Collusion, as the mainstream media has pointed out repeatedly, is not a crime. Conspiracy is, and many of Mr. Mueller’s questions are directly related to the question of whether the Trump campaign conspired with Russia to influence the election.
For example, the Mueller questions include inquiries about the 2016 meeting at Trump Tower between top campaign officials (including Donald Trump Jr.) and a Kremlin-connected Russian lawyer; President Trump’s 2013 trip to Moscow; his conversations during the campaign about prospective business deals in Russia; any efforts during the campaign to meet with Russian President Vladimir Putin; and his knowledge of any Russian hacking efforts during the campaign or of any outreach from his campaign — and specifically, now-indicted, former campaign chairman Paul Manafort — to Russian officials in an attempt to secure their assistance.
What additional information Mr. Mueller might have about any of those topics, we don’t know. But they do show that the inquiry into whether the Trump campaign was in any way a co-conspirator in the Russian hacking scheme is very much alive.
“Hard to obstruct justice … for a crime that never happened”
In another tweet Tuesday, Mr. Trump suggested that the Mueller team’s questions related to obstruction of justice — for example, those related to his reasons for firing former FBI Director James Comey, his contemplation of firing Attorney General Jeff Sessions, and his reported efforts to get former National Security Adviser Michael Flynn off the hook for his own lies under oath — are invalid if they were not related to an underlying crime.
For starters, it’s simply not true that obstruction of justice has to be related to something that is, itself, a crime. Republicans used to be quite clear on that point, back when President Bill Clinton lied under oath about his affair with White House intern Monica Lewinsky, an act that was itself perfectly legal.
It is also perfectly clear at this point that actual crimes were committed. The Mueller team has secured several guilty pleas, some for lying to investigators but others related to fraud and money laundering. Beyond that, the list of questions related to conspiracy with Russia (see above) shows that the door is by no means closed on finding additional criminal conduct by Mr. Trump’s associates, if not the president himself.
“Screwing with the work of the president of the United States”
According to the Washington Post, Mr. Trump’s then-lawyer John Dowd reacted strongly to Mr. Mueller’s suggestion that he could subpoena the president to testify before a grand jury. Mr. Dowd, who quit shortly thereafter because his client was ignoring his advice, reportedly said, “This isn’t some game. You’re screwing with the work of the president of the United States.”
There isn’t a direct precedent demonstrating that a sitting president can be subpoenaed in a criminal proceeding, but there’s no particularly good reason to imagine that one would be immune. The bedrock principle that no person, not even the president, is above the law, strongly argues for the notion that Mr. Trump could be compelled to testify.
Whitewater Special Counsel Kenneth Starr did issue a subpoena to Mr. Clinton, which led the president to agree to testify voluntarily. If Mr. Mueller sought to compel testimony and Mr. Trump dug in his heels, the matter might well land in the Supreme Court, where it’s a good bet that the justices would side with the special counsel. For one, there’s a related precedent: Mr. Clinton was compelled to testify in a civil lawsuit (brought by Paula Jones) while he was in office. The court ruled unanimously that the case could proceed while Mr. Clinton was in office and was unpersuaded by the argument that allowing such litigation would interfere with his ability to execute the duties of his office. The second reason is Chief Justice John Roberts’ well-established antipathy to the notion that the institution he heads be viewed as a political body. It would be surprising to see him shield a president (and particularly a Republican) from testifying in a criminal investigation.
The perjury trap
Many observers — both those who are on Mr. Trump’s side and those who aren’t — have described Mr. Mueller as seeking to lure President Trump into making false statements under oath. The reasoning is that the president is such a habitual liar, so prone to say whatever comes to mind and so unaccustomed to preparing himself for depositions that he would be all but guaranteed to get himself into trouble. Trump supporter Allan Dershowitz outlined to The Post what he figures is Mr. Mueller’s strategy based on the published questions: “throw him softballs so that he will go on and on with his answers. Instead of sharp questions designed to elicit yes or no, they make him feel very comfortable and let him ramble.”
Let’s pause for a moment and reflect on the accepted wisdom that the current president of the United States can’t be expected to tell the truth. But let’s also acknowledge that many of these questions involve a simple effort to follow up on things the president himself has said — for example, what he meant when he told Russian diplomats in the Oval Office that firing Mr. Comey had relieved a great deal of pressure or when he told NBC News anchor Lester Holt that the firing was because of the “Russia thing.” These are not trick questions. They are not evidence that Mr. Mueller has strayed far afield. They are basic attempts to get to the bottom of what he knew, when he knew it and what he meant by his contradictory explanations for his actions. We should expect a president to be able to answer them.
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