Trump’s Lawyers Play a Game of Chicken With Robert Mueller

According to The New York Times, Trump’s lawyers have articulated why they don’t want their client to be interviewed by Robert Mueller. One of their reasons will come as no surprise to any of us, but is a striking admission from lawyers representing the president of the United States.

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.

They know that Trump is a pathological liar and are pretty certain that he would lie to investigators. That admission by the president’s own legal team, in and of itself, is a profound statement of his unfitness for office.

Here is the legal case they make:

They are convinced that Mr. Mueller lacks the legal standing to question Mr. Trump about some of the matters he is investigating, like the president’s role in providing a misleading response last summer to a New York Times article about a meeting Mr. Trump’s son Donald Trump Jr. had with Russians offering dirt on Hillary Clinton. The advisers have also argued that on other matters — like the allegations that the president asked James B. Comey, then the F.B.I. director, to end the investigation into the former national security adviser Michael T. Flynn — the president acted within his constitutional authority and cannot be questioned about acts that were legal.

The “legal standing” argument is confusing, given that Mueller’s charge as special prosecutor is pretty broad. But they also seem to be suggesting that Trump can’t be interviewed because he isn’t guilty, which is an odd legal claim.

What this all comes down to is that Trump’s lawyers are engaged in a game of chicken with Mueller. That’s because the alternative, if the president refuses to voluntarily sit for an interview, could be a subpoena to testify under oath in front of a grand jury. They are pretty much daring the special prosecutor to go there.

John Dowd, the longtime Washington defense lawyer hired last summer to represent Mr. Trump in the investigation, wants to rebuff an interview request, as do Mr. Dowd’s deputy, Jay Sekulow, and many West Wing advisers, according to the four people. 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.

That is a pretty high-stakes gamble for the Trump legal team. Based on precedents set during both the Nixon and Clinton years, it is very likely that Mueller would win a subpoena showdown. Having made that gamble and lost, Trump would then have to face a grand jury without the benefit of having his lawyers present for the questioning. The president’s only recourse under those circumstances would probably be to assert his 5th Amendment rights.

It is very likely that the positioning described by The New York Times is simply the opening salvo of negotiations from Trump’s lawyers. Even as such, it’s pretty weak tea.

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly.