In Monty Python’s film, “The Life of Brian,” the lead character hangs hopelessly on the cross when a small army arrives to rescue him. His relief is short-lived as Otto, the leader, promptly announces that they are the crack suicide squad trained to kill themselves “within 20 seconds.” The scene comes to mind as President Trump’s newly reconstituted legal team seems eager to make quick work of any active defense. Indeed, Rudy Giuliani seemed intent in beating that record of 20 seconds by half.
Giuliani has now given special counsel Robert Mueller a May 17 deadline to yield on limiting demands to question the president, but he left unstated what the Trump squad might do on May 18 if it does not get its way. The “Otto” in this case could well prove to be Emmet Flood, who was selected in part due to his work as a member of President Clinton’s defense team. The Clinton defense, however, is nothing to emulate.
Clinton lost in the courts, culminating in a unanimous judgment against him in the Supreme Court over a refusal to appear for sworn testimony in Clinton v. Jones. Clinton’s strategy ultimately cost him and his office dearly and led to his ignoble and well-deserved impeachment. Trump could curiously “pull a Clinton” but might want to look where it left his predecessor.
Months ago, I encouraged the president to take a deal with Mueller and sit down immediately to answer questions on four discrete categories that notably did not include the Stormy Daniels and Karen McDougal controversies. As noted then, time was of the essence and matters would only get worse. The president waited, and now FBI raids, counsel turnover, and endless contradictions have left the Trump defense in tatters.
Even with this ruinous history, the adoption of a Clintonesque defense may be personally satisfying for Trump but would come at a prohibitive cost for himself and his office. Indeed, as suggested by Giuliani, it could have Trump become the first president in history to invoke the Fifth Amendment. The strategy of declaring the special counsel investigation a “witch hunt” and perjury trap is clearly cathartic but also untrue.
Both the special counsel and the federal prosecutors in the Southern District of New York are investigating real crimes by such characters as Paul Manafort and Michael Cohen. Moreover, any sworn testimony with prosecutors is a potential perjury trap. That does not mean that you inevitably will be charged with perjury. Indeed, Clinton clearly lied under oath yet he was not criminally charged.
The current strategy, including Giuliani’s recent self-immolation on national television, seems designed primarily for public rather than prosecutorial consumption. It is in many ways the adoption of the worst-case scenario despite a number of available options. This scenario maximizes the likelihood of impeachment if the House of Representatives changes hands, which is the Clinton strategy. The team appears willing, absent Mueller caving in on the limits of questioning, to defy a subpoena from the grand jury. While limited, the existing case law favors Mueller, as it should. A president should not be able to defy a subpoena in a nation committed to the rule of law.
So why fight the subpoena? Because the Clinton defense is not about success but about survival. You run a series of losing skirmishes in the hope that, just before a final coup de grâce, you can renegotiate conditions for a sit-down as Clinton did in his appearance before a grand jury for a limited four-hour videotaped session.
The idea is that you present the special counsel with the danger of a constitutional crisis in a defiant president in contempt unless he yields to conditions. Giuliani and others have referred to “two or three hours” as the absolute limit, an apparent effort to allow a negotiation of a Clinton deal. Putting aside the high costs to the office of the president, the strategy could just as easily result in utter disaster in this game of constitutional chicken, if Mueller does not jump first.
Two obvious problems exist with this strategy. First, Clinton was limited to four hours, with counsel present, because he had already given a deposition under oath in the Jones case on Jan. 17, 1998. Independent counsel Ken Starr already had that transcript when he sat down with Clinton on Aug. 17, 1998. Trump will not have submitted to the prior testimony and faces a much broader set of allegations, a well-based reason for Mueller to refuse such a limited period.
Second, once Trump has forced this issue to go through the courts, Mueller would not have an obligation to yield to Trump. He would have a court order compelling an appearance and could even demand a conventional appearance without counsel. That would leave Trump alone and the same lawyers demanding that he degrade himself and his office with an invocation of the Fifth Amendment. That would very likely lead to his impeachment, particularly if the House switches parties in November.
The adoption of the worst-case scenario as the only scenario is unnecessary and premature. The embarrassing suggestion of Trump’s counsel is that he cannot be trusted, even with prior questions and counsel present, to avoid self-incrimination. They would rather risk an end-game leaving no option, from their perspective, to an invocation.
For lawyers, it is a strategy that works: If you do not recommend cooperation, you cannot be blamed for an interview gone bad. It is also works well for a prosecutor: If Trump is left with no option but invoking the Fifth Amendmend, Mueller needs only to leave the choice to Trump to join the legal suicide squad. He could effectively invoke himself out of the presidency.
Trump may indeed prefer the worst-case scenario and replicate the Clinton defense. He could survive and, if mere survival is the measure, he might be able to claim victory. Maybe. Clinton secured a handful of Republican votes in the Senate along with all 45 Democratic votes. Trump could count on the need for 67 votes as giving him the edge.
He could survive impeachment by the House after spending all of his term in grinding litigation, like Clinton, only to be saved by a largely partisan vote following a Senate trial. It would not necessarily spare him from indictment, but Trump might be able to fly away on Air Force One on Jan. 20, 2020, and very well call that victory.
