For eight months, Donald Trump’s lawyers have publically and privately negotiated with special counsel Robert Mueller, purportedly trying to work out terms for the president to answer questions about possible charges of obstructing justice and conspiring with the Russians to influence the 2016 election.
At least that’s what the lawyers led by former Mayor Rudy Giuliani say they are doing.
In reality, they have pursued a lengthy delaying action, designed to damage public attitudes about Mueller’s probe while hoping to push a final resolution of the issue of Trump’s testimony beyond the 2018 elections. By then, they hope — possibly unrealistically — for a more favorable political climate: Republican retention of at least one house of Congress; installation of Trump nominee Brett Kavanaugh on the Supreme Court; and further erosion in public support of Mueller’s probe.
—Retention of one house of Congress — presumably, the Senate — would strengthen the likelihood Trump can withstand any impeachment attempt, should Democrats win the House and, in the event of a highly critical report from Mueller, feel compelled to pursue that course next year.
—Installation of Kavanaugh, probably just a matter of time, would solidify the 5-4 conservative majority on the Supreme Court and increase the chance that, should Mueller be forced to subpoena Trump’s testimony, it would take the president’s side.
—And the more Trump and his allies can convince his predominantly Republican political base that the Mueller probe really is a politically motivated “witch hunt,” the less chance there is that any impeachment move could ever garner the votes of the 15 or so GOP senators that would likely be required to achieve a two-thirds vote needed for conviction.
The president’s supporters are well aware that, when President Richard Nixon was forced to become the only American president o resign in the Watergate scandal more than four decades ago, it was the loss of Republican support in Congress that ultimately brought him down.
After all, while a special counsel can bring criminal charges against associates of a president, as has been the case in the Russia probe as it was in Watergate, even Mueller is understood to believe that a sitting president can’t be indicted under normal judicial procedures. What the counsel can do is to make so compelling a case of criminality that Congress would have no choice but to invoke the constitutional provision requiring impeachment for “treason, bribery or other high crimes and misdemeanors.”
By all accounts, Mueller has basically completed his probe of the obstruction of justice portion of his investigation, which stems from Trump’s decision to fire FBI Director James Comey in an effort to put to rest “this Russia thing,” as he put it in that May 2017 interview with NBC’s Lester Holt, from his repeated threats to fire Mueller, and potentially from the infamous Trump Tower meeting with some Russians.
But like any serious prosecutor, he wants to give potential targets a chance to give their side. Giuliani and the other Trump lawyers have resisted so far, arguing Trump shouldn’t answer questions about firing Comey, because a president is entitled to pick or remove his subordinates.
While the basic facts surrounding potential obstruction allegations are well known, those involved in the conspiracy, or collusion, aspect of the investigation are only beginning to emerge. So far, Mueller has not charged anyone in the Trump orbit in this aspect of the probe, though the recent indictment of Russians responsible for hacking the Democratic National Committee and what appears to be a tightening noose around long-time Trump confidante Roger Stone suggests he is getting close.
In any case, it’s long been clear that one main reason for Trump’s attorneys to resist allowing him to testify before Mueller is that, based on the track record of his 19 months in office, the president simply can’t be counted on to tell the truth. Giuliani also said he fears a “perjury trap,” claiming Comey has given different versions of his conversations with Trump at different times.
In recent days, Giuliani has argued that, unless Mueller completes the probe by Sept. 1, he’d be violating Justice Department guidelines and “doing a Comey,” a reference to the former FBI director’s October 2016 public comments about the Hillary Clinton investigation. Legal analysts say the guideline limits public acts or statements during a campaign; surely, Mueller would want to avoid any repetition of the furor that greeted Comey’s comments.
Because of that likelihood, Trump and Giuliani may have already succeeded in ensuring that any presidential testimony — or subpoena showdown — will happen after the Nov. 6 elections. Though Kavanaugh may well be installed on the Supreme Court by then, however, the likelihood of substantial GOP election losses could weaken, not strengthen, Trump’s political position.
For in the end, like Watergate, this is a political struggle, not a legal one.
Carl P. Leubsdorf is the former Washington bureau chief of the Dallas Morning News. Readers may write to him via email at: email@example.com.