On Lawfare Benjamin Wittes discusses the possibility that Special Counsel Robert Mueller will issue a subpoena ordering President Trump to sit down in front of a grand jury. When it comes to the decision facing the Trump legal team, it really gets a bit surreal:
Now look at the matter from the perspective of Trump’s legal team—at least if it were acting rationally. (This may be condition contrary to fact, but let’s run with it for now.) It is a simply terrible idea for Trump to sit for an interview. He’s a liar; he speaks both impulsively and compulsively, and he probably has some legal exposure if he tells the truth. So the interview is a lose-lose proposition. This is particularly the case if Trump’s lawyers believe that Mueller has nothing serious on Trump personally without an interview but also that the president may lie if he sits for one—and that his greatest criminal exposure involves not what he has already done but the lies he is likely to tell.
Normally, in such situations, the subject asserts his Fifth Amendment right not to incriminate himself—the right whose whole purpose is to relieve the so-called “cruel trilemma” of self-incrimination, perjury, or contempt. But while the president has a right to assert the Fifth, he can’t easily do so without serious political damage. So the alternative for his legal team is to bet that Mueller won’t actually pull the trigger and issue the subpoena, either out of fear of litigation defeat or out of desire not to delay. Rather than assert the Fifth, the Trump team is playing chicken with Mueller.
That’s really something, isn’t it? We’ve gone a long way down the rabbit hole here.
My suspicion is that if President Trump sees this as a challenge to his acting skills, he may ignore his legal team and insist on doing the interview – or the grand jury testimony. His grip on reality being what it it is, he’ll believe he can make it work and come out looking clean.
Hell, even if he screws up, he’ll tweet that he handled it perfectly and the more credulous of his supporters will believe him.
But at that point, it may be members of Congress on the jury, and it could get messy very quickly.
CNN just reported that Trump’s representative Ty Cobb has resigned. CNN believes …
But, there’s little doubt that the sentiment Cobb expressed to ABC is one he’s expressed to the President and his advisers in private before. That sitting down with Mueller might be the best option for Trump because of how bad, politically speaking, not sitting down with the special counsel would be.
Cobb’s departure comes as Trump himself has seemed to sour on the prospect of an extended interview with Mueller. That souring has coincided with contentious conversations between the special counsel and Trump’s legal team in which the possibility of Mueller subpoenaing Trump to testify was broached. It also comes as the more than 4 dozen questions Mueller wants to query Trump about were leaked to the New York Times.
In an interview with the Washington Post’s Bob Costa, former New York City Mayor Rudy Giuliani, a recent addition to Trump’s legal team, suggested that a sitdown with Mueller was still a possibility — but with certain conditions.
It’s a little like watching someone fighting to bring in that sailfish for the last 12 hours. The question is whether or not, like the trophy in The Old Man And The Sea, will Mueller end up with a Trump ready to talk and reveal all – or a chewed up carcass of little worth, as Trump takes the 5th on every question put to him?
Or would he? The 5th is, in its way, self-incriminating. Would supporters begin to sour on the master showman then, realizing they were conned?
