This was a banner week in Trump legal news, one that included Ty Cobb’s surprise announcement that he was retiring in order to spend more time with his mustache.
That was quickly followed by the hiring of a former Clinton impeachment attorney to replace him (insert comedy sound effect here), and former US Attorney Rudy Giuliani going on national television to make Trump look even guiltier of obstruction than he already did, which is saying something.
But the big legal news this week was the report that the office of the special counsel had provided the White House a list of forty-nine questions that Robert Mueller wishes to ask Donald Trump. (Later, it was clarified that the leaked list was actually compiled by Trump’s own lawyers—Jay Sekulow, to be specific—summarizing information the Mueller team had provided, not verbatim from the special counsel.)
Soon after THAT, it was reported that a tense face-to-face meeting between Mueller himself and the president’s lawyers had taken place in March, in which the White House asserted that Trump had no obligation to answer any questions at all, and Mueller declared that he would subpoena him if necessary.
When they make the movie about all this (Tom Hanks will play Mueller), that is going to be a hell of a scene.
Check out the gall of Trump’s lead lawyer (at the time) John Dowd, who is said to have angrily replied, “This isn’t some game. You are screwing with the work of the president of the United States!”
What irony. There are games being played here for sure, but Mueller is not the one playing them.
LAW AND ORDER, PRESIDENTIAL CRIMES UNIT
This is Nixon’s imperial presidency all over again. The White House is duplicitously standing on the stature of the office to deflect a criminal inquiry, in effect insisting that the President is above the law. But it didn’t work then and it won’t work now.
Note that Dowd quit soon after the March meeting, because he knows the danger his cretinous boss is in. Cobb surely knows that too. (Welcome Emmet Flood! Your clock is ticking.)
Nixon and Clinton both made similar and predictable “I’m too busy and important” arguments to try to derail the investigations against them. Neither worked. When Clinton’s lawyers briefly tried to advance that claim, Scalia himself openly ridiculed them. Not that there is any consistency on the right wing.
Dowd’s pathetic attempt at intimidation is especially laughable given the alleged “work” this President is doing. Are we really supposed to quake in awe at the mighty labors in which our herculean Great Leader is engaged, with which nothing can be allowed to interfere, not least piddling matters of treason? Please, motherfucker. Only the most Kool-Aid-besotted Trumpkin is giddy enough at the Insane Clown President’s important agenda of destroying our air and water, wrecking the educational system, robbing the poor to further enrich the rich, laying waste to seventy years of American power and influence abroad, spreading racist and misogynist bile, attacking the rule of law, and obliterating the cherished norms that bind us as a people, to buy that argument.
All this has turned the American public into armchair experts on constitutional law. The unhinged and suddenly civil libertarian Rudy Giuliani says one thing about whether a sitting president can be subpoeaned; United States vs. Nixon suggests quite another. (Regardless, any time that question is in the news, it’s never a good sign for the country). Ken Starr, of course, issued a subpoena to Bill Clinton, who negotiated an interview as an alternative to testifying before a grand jury. Notwithstanding the shitty legal advice Trump routinely gets, he might likewise calculate that his best bet is to sit down and answer questions rather than fight, especially given his massive ego and overestimation of his ability to bullshit. Then again, he might figure he can defy Mueller—knowing that the GOP leadership will have his back—and take his chances in both the actual courts and that of public opinion. Here Trump’s impulse to always take the most combative path will be at war with his mistaken belief that he can outsmart whoever he’s talking to, even Bob Mueller. Either way, he has no good options.
So the bottom line we ought to take away from this remarkable meeting is plain:
One way or another, Trump is going to have to sit and answer questions, even if it’s under duress, or pay a steep political price that might be even worse. The White House can stall and delay and engage in its usual carnivalesque antics, but the precedent is well established. The POTUS may be exempt from being charged with ordinary crimes while in office (or maybe not; we might get the chance to find out), but contrary to John Dowd’s fulminating, he is not above the law and can be compelled—or at least politically forced—to answer for his actions.
THE LADY OR THE TIGER
So when judgment day finally comes, Trump will have two choices: he can tell the truth or he can lie.
The problem for him is that the answers to many of the special counsel’s questions are likely to be damning. If he tells the truth, he will incriminate himself. If he lies, which is his natural instinct, he will perjure himself, as the special counsel has already interviewed dozens (hundreds?) of people, flipped witnesses, read emails, phone logs, and possibly even listened to wiretaps, and surely knows the truth already.
So Trump can lie, and hope Mueller can’t prove it, or he can tell the truth, and hope he gets away with it.
The former seems unlikely, given the amount of proof the special counsel presumably has already in hand, per above. So the latter would seem advisable, both tactically and—cough, cough—morally. After all, Trump has gotten away with things unimaginable for any politician, let alone the president, from refusing to release his tax returns to attacking Gold Star families to mocking the disabled to bragging about being a sexual predator. Why shouldn’t he get away with this too?
The problem is, Trump seems congenitally incapable of telling the truth. As many have noted, he lies about things big (“no collusion!”) and small (the size of his inaugural crowds, or his penis). Ironically, the only time he tells the truth is when he shouldn’t, like bragging to Lester Holt on national television that he fired Jim Comey over Russiagate, or telling Kislyak and Lavrov that doing so had taken the pressure off him.
Might he take the Fifth? He might. What a pretty picture that would be, the President of the United States refusing to say whether or not he committed treason on the grounds that the answer would incriminate him. One would have to think that at last would make Republicans turn against him. But as we learned last week, for some voters predisposed to fascism, it wouldn’t.
Trump himself has repeatedly—publicly—ridiculed anyone who takes the Fifth as essentially admitting their guilt, so it’s hard to imagine him reversing himself and going back on something he once said.
Ha, ha, just kidding.
PLAY IT AGAIN, DON
Might Trump just openly defy such a subpoena? Might he try—again—to fire Mueller?
He might, and he might get away with either or both—by which I mean the GOP would not do its goddam job and force him to obey the law, and/or that the judiciary would cravenly abdicate its role as a co-equal branch and compel his testimony, or worse, make a mockery of the Constitution and rule that he doesn’t have to. That would be such a gargantuan breech of justice that it would trigger a much bigger crisis than what we are experiencing now.
When Nixon refused to comply with a subpoena directing him to release the secret White House tapes, Special Prosecutor Archibald Cox took to the TV airwaves on a Saturday afternoon—going up against NCAA college football, no less—to make his case directly to the American people. In Slate’s great Watergate podcast “Slow Burn,” host Leon Neyfakh describes how this tweedy, bow-tied Harvard Law professor didn’t dumb anything down for the public, but instead clearly and methodically laid out his reasons why Nixon’s proposed “Stennis compromise” was unacceptable. His performance worked, in terms of convincing a majority of the public. (So did a motion he filed in federal court rejecting Nixon’s shameless dodge.) Of course it also led—mere hours later—to his firing in the infamous Saturday Night Massacre. But that in turn led directly to Nixon’s eventual downfall. So on balance, I think we have to say that the special prosecutor won that one.
But that was 1973.
If Bob Mueller were to go on national television at some critical point in this investigation and lay out the facts in an equally calm and convincing manner—which is easy to imagine him doing—would the American people be equally reasonable and objective? It’s equally easy to imagine Trump’s rabid base and its shameful enablers in the GOP leadership shrugging their collective shoulders, muttering “fake news,” and standing by their man Tammy Wynette style.
Do you doubt it? Go online and sample some of the anti-Mueller vitriol in the Bizarro World right wing blogosphere. It’s chilling.
In “Slow Burn,” Neyfakh also describes in cinematic detail how, in the hours after firing Cox, Nixon sent FBI agents to occupy and shutter the special prosecutor’s office and seize all its files, as if it were a crime scene. (It was, but not the kind Nixon imagined.) It was an act unprecedented in American history, more the behavior of a mob boss or a police state despot. But can we not imagine Trump doing exactly the same? In fact, please don’t tell him about that, because it might give him ideas.
CLANG CLANG GO THE JAIL GUITAR DOORS
No one outside the Fox Nation bubble doubts that Spanky is in serious legal trouble. Speaking of which, we haven’t even talked about the epic legal news of the preceding week, the SDNY-directed raid on Michael Cohen’s home and office and hotel room, a raid that many feel puts Trump in even more legal jeopardy than the Mueller probe. (Trump among them, apparently.)
Even if Trump goes pardon crazy, he is not going to be able to stop the punishing scrutiny of his family crime syndicate that has inexorably begun. People will be going to jail. Even if he personally manages to limp through four (or even—gulp—eight) years without being impeached, forced to resign, or implicated in a historic criminal indictment of a sitting president, Trump very well may be prosecuted once he is out of office.
It is very likely that as the vise tightens, Trump himself will precipitate a climactic conflict that will mark the end of his chaotic reign, well before something like impeachment proceedings can play out. Needless to say, others in his inner circle don’t have the luxury of that same executive protection. Given that Trump is, um, not known for his grace under pressure, what will he do if and when Mueller (or Robert Khuzami, the Deputy US Attorney for the Southern District of New York, or Eric Schneiderman, the New York State Attorney General) indicts Don Jr, Jared, or even Ivanka?
In the end, all these options—the truth, lies, the Fifth, refusal to testify at all—are really one. All of them ultimately are less questions of law than of political will, and all of them ultimately come down to whether or not the Republican Party and the American people in general care about the crimes Trump has committed.
(And I say “has committed” rather than “may have committed” because we can say with confidence—and a court of law will likely prove—that he has committed crimes: principally, the shameless and brazen obstruction of justice. Other crimes—such as his personal involvement in a conspiracy with foreign powers to defraud the United States—remain to be proven, even as it’s clear that his underlings and associates are guilty of them.)
Again, Watergate is an instructive lesson. In the end, Nixon resigned because he knew he was going to be impeached and probably convicted…..in other words, because—after almost two years of staunchly standing by him—his own party had finally seen the incontrovertible evidence of his appalling and illegal actions and was going to hold him accountable.
But what if they hadn’t? What if Nixon had been been blessed with a Republican Party that stood by him despite all the incriminating evidence that eventually came out, particularly the so-called “smoking gun” recording from just days after the break-in, on which he is heard directing H.R. Haldeman to shut down the FBI investigation into the matter, proving definitively that he was in on the coverup from the very start.
With a compliant Congress like that, he might well have survived.
In the final episode of “Slow Burn,” Neyfakh does a wonderful job of summarizing the combination of luck and systemic strength that brought Nixon down and rescued the republic. It might easily have gone the other way. One is left with a queasy feeling about how that would play out today.
If Trump lies under oath to Robert Mueller and Mueller proves it, even beyond the shadow of a doubt, will enough of the American people care? Will the GOP leadership hold the President to account?
If he tells the truth about his actions, but shrugs and says “So what?”, will we do anything about it?
If he takes the Fifth, or refuses to abide by a subpoena and submit to an interview at all, or asserts that he is lord of the Earth and the Heavens, master of all the beasts that fly and fish that swim and can blow us a raspberry and do whatever the hell he jolly well wants, including shooting someone in the middle of Fifth Avenue, will we give a shit?
This may be the ultimate test of our democracy, to say nothing of the character of the American people.