By Dan Calabrese
Some of you are probably looking for my past columns about people like Lois Lerner and Martin Shkreli taking the Fifth in congressional testimony, and my belief that it was a clear indication they knew they had broken the law. So you’re going to call me a hypocrite or a tribalist or whatever because I now think Donald Trump should do that exact same thing should he give Robert Mueller an ill-advised interview.
No. These two things are not the same, which I’ll explain momentarily. First let’s put on the record the Trump team acknowledges this is a very plausible option:
In an exclusive interview on “This Week” Sunday, Giuliani said to ABC News Chief Anchor George Stephanopoulos, “How could I be confident” that the president won’t take the Fifth Amendment The former New York City mayor also commented on the possibility of Trump getting subpoenaed by the special counsel to testify. “We don’t have to” comply with a subpoena, he said.
“They don’t have a case on collusion, they don’t have obstruction … I’m going to walk him into a prosecution for perjury like Martha Stewart did?” Giuliani said. “He’s the president of the United States. We can assert privilege other presidents [have].”
What’s the difference between the examples I cited above and this one? Simple: All bets are off when you’re dealing with a special counsel, especially one who clearly hasn’t found any underlying crime to justify all the time and money spent on his investigation.
Remember: Patrick Fitzgerald knew from the first day he was investigating the Valerie Plame thing that no crime had been committed in the “outing” of her name, yet he “investigated” for over a year and nabbed Scooter Libby on a tacky process crime. That’s what special counsels do. A Trump interview with Mueller would be a series of trick questions and traps designed to get the president to trip up and perjure himself. That would be Mueller’s only purpose in conducting it, which is precisely why Trump would be foolish to grant it.
But if Mueller subpoenas Trump, and Trump feels he can’t defy the subpoena, then he should take the Fifth on every single question, even something as innocuous as “What is your name?” Why do that? After all, Trey Gowdy used the name question to demonstrate to Martin Shkreli that not every question is set up to incriminate you. Doesn’t that apply in Trump’s case as well?
No, it doesn’t, because when Gowdy questioned Shkreli, the primary purpose of the interview was not to trap Shkreli into committing perjury. If Mueller interviews Trump, that will be the primary purpose, and it’s far too dangerous for Trump and/or his lawyers who might be present to play the game of determining which questions are safe to answer and which ones are not. Mueller is not after information. He’s after a pretense to indict on a process crime. Under no circumstances should Trump give it to him. Under no circumstances should Trump give Mueller anything.
Unless it’s the boot. It’s time for Mueller to put up or shut up, and I don’t think he has anything to put up.