A year on, the president continues to lash out against the investigation, calling it a witch hunt (in all caps in his constant tweets) and repeating ad nauseum that there is no proof of collusion, while the Mueller team continues to find new avenues to investigate, uncover new sources of information and bring indictments (19 in all at last count) against Russians responsible for the interference, and former campaign aides who were in some way cosy with the Russians. This seems like a propitious time to look at where we are and where we may wind up on this very divisive political and legal question. Also, this is a good time to review the politics of it all, as President Trump’s political and legal strategy toward the investigation seems to be changing in perturbing, if unsurprising ways.
The president and his legal advisors have decided to fight the main battle in the court of public opinion, primarily on TV but their arguments are contradictory and often confusing
The problem for those of us who are watching closely is that while the legal and political strategies of the president are very public, they have been also very unclear. Clearly the president and his legal advisors have decided to fight the main battle in the court of public opinion, primarily on TV (in which Fox News is playing the main role), but their arguments have mixed legal and political points in a sometimes contradictory and often confusing way. The confusion is often compounded by the almost daily leaks from the White House itself and by a rapidly changing team of legal advisors to the president, who seem to quit often because he often contradicts them in public or are fired for not defending him with the vigour he wants. Meanwhile, Mueller has run an extraordinarily tight ship which does not leak at all as far as anyone can tell and appears to be well ahead of the public, the president’s legal help and the media. It turns out that much of the information the media has learned from sources in the government only recently about those who are subjects or targets of the investigation (e.g. Michael Cohen, the president’s personal lawyer until recently) was known to the Mueller team before the end of last year. So, neither we nor Trump know how much more that has not yet come out the Mueller team knows.
This could be important, because the main issue at present seems to be whether Trump will submit to questioning under oath by the Mueller team. This question has been on people’s minds for months now but is now getting serious as Mueller has evidently made it known to Trump’s legal team that he desires to question the president. Several months ago, Trump said publicly that he wanted to talk to Mueller, but he has gone quiet on that recently. From media reports, it seems that his lawyers, with one exception, think it a dreadful idea. Their fear is of two sorts: first is that Trump has never been able to refrain from lying and doing so under oath is a felony; second, there is the double whammy of not knowing how much Mueller knows that has not been made public and whether Trump would get tripped up by lying about something Mueller knows that he has not divulged. Evidently, talks between Trump’s lawyers and the Mueller team are still going on about an interview with the president, and I suspect that the Trump team is still trying to find a scenario in which he would not be at such risk by getting an agreement to limit the length, the breadth and depth of the questions that would be posed. They are at a disadvantage, however, as Mueller has subpoena power, even over a president (Nixon was ordered by the Supreme Court to give up his secret tapes to the Watergate prosecutor who had subpoenaed them, and Clinton had to obey a subpoena to testify to a grand jury); if the Trump’s lawyers ask for too much Mueller can just subpoena Trump to testify to a grand jury.
There is a new face among Trump’s team of lawyers, Rudy Giuliani, former mayor of New York, as well as former federal prosecutor, who Trump probably brought on board as his TV attack dog rather than for his legal acuity. Giuliani has looked fairly foolish in a number of TV appearances, replete with contradictions and incorrect understanding of the law, but his purpose seems to be that of an aggressive defender of Trump in the public square and to undermine the credibility of Mueller and his team in the public’s eyes with outright lies about their background and intentions. It appears that Trump and his legal team, possibly at Giuliani’s behest, have switched their emphasis to this attack mode on the Mueller team, thinking it the most effective way to beat back the challenge of the Mueller investigation. This also comports with the president’s loudly articulated assertions that the investigation is a witch hunt.
This change of strategy may just reflect Trump’s natural instincts to attack rather than play defense. He has a history of aggressive responses to challenges. But I have to wonder if this change of strategy isn’t also provoked by fear and knowledge that Mueller’s team may have some damning information. For example, I note that Giuliani (who either may know what Trump knows about this or believe that the amount of smoke that has arisen must mean fire) has begun to argue publicly that a sitting President can’t be indicted. Actually, what he says is probably true, but why would you keep mentioning indictment if you believed your client was innocent. The worry of the other Trump lawyers that Trump would, without doubt, perjure himself in a session with Mueller must also reflect a very queasy feeling among them about whether their client is culpable.
There are many new developments in the investigation that we are just finding out about, but that the Mueller team has been studying for several months; the most interesting is the seizure of all the records of Trump’s erstwhile personal lawyer, Michael Cohen. Evidence has been made public that Cohen (who was Trump’s “fixer” and handled the payoff to the porn star who Trump allegedly had an affair with) has received in his bank account several million dollars from large firms and others who evidently thought they were paying for access to Trump. Among these was a known Russian “oligarch” who gave Cohen at least half a million dollars. All that can be ascertained now is that Cohen was probably running a “pay-to-play” scam, but the smoke of a connection to Russia is getting thicker. Stay tuned.
P.S. While I was writing the above last Sunday, Trump began his onslaught against the Mueller investigation, and by extension his own Department of Justice (DOJ); this began to come out on Monday, and the extent of the offensive only became clear on Tuesday. On Sunday, he evidently demanded the Assistant Attorney General, Robert Rosenstein (who is, because of the Attorney General’s recusal from overseeing the Mueller investigation, in fact, Acting Attorney General in this case) to launch an investigation as to whether the DOJ had planted a “spy” in the Trump election campaign. This would, of course have been an action of the Obama adminis-tration, which Trump continues to run against as his administration also continues to try undo most of the policies and programs President Obama enacted. The allegation of a “spy” comes from the recent disclosure that the FBI had an informant who, briefly at an early stage of the campaign, endeavored to learn from 3 of the foreign policy advisors to the campaign how much contact they had with the Russians.
Rosenstein, in a nasty spot between his boss and the integrity of the investigation, agreed to ask the DOJ inspector General to investigate the allegation. That was bad enough, but now it turns out that he was also forced to agree to a meeting in which relevant documents (which documents are not clear) will be shown to Administration officials and members of Congress. This, of course, breaches all standards of intelligence work by exposing sources and methods, and it is a clear signal that Trump intends to use this “red herring” to trumpet even more insistently his standard attack on the Mueller investigation, that it is an tool of the Democrats, especially Obama and Hilary Clinton to prevent his election and, after that failed, to undermine his administration. This looks more and more like the desperate strategy of a man who has something to fear from a thorough and objective investigation of the facts. At some point, Rosenstein will have to stand up and resist Trump’s interference in a DOJ investigation which is about Trump. But his actions in the past two days do not indicate that he is ready to put his job on the line yet. By the time he is, it may be too late. Mueller is so far ahead of all of us that he may already have incriminating evidence; the question is how will a man of his impeccable rectitude but unused to political dirty tricks withstand the broadside attack he and his team are about to undergo.
The author is a Senior Scholar at the Woodrow Wilson Center in Washington DC, and a former US diplomat who was Ambassador to Pakistan and Bangladesh