Carefully, incrementally, and tenaciously, Special Counsel Robert Mueller appears to be getting closer to proving wrongdoing by President Donald Trump. Incriminating dots are starting to connect. Campaign officials Michael Flynn, George Papadopolous, and Rick Gates have pleaded guilty and are cooperating with the special prosecutor.
Gates, it was reported earlier this week, had repeated contacts with a Russian intelligence officer in the weeks before the campaign. Mueller has subpoenaed Trump and his organization’s financial records, possibly including Trump’s tax returns, which could reveal Trump’s financial ties to Russia, and as with Paul Manafort, possible money laundering and tax evasion. Mueller also continues to probe the hacking of Democrats’ emails and Trump’s possible obstruction of justice. Indeed, reports that Trump’s former lawyer John Dowd suggested the possibility of pardons to two key witnesses in the investigation may be further proof of obstruction.
But the most critical witness of all will be Trump himself. He will almost certainly be asked to appear and answer the special prosecutor’s questions. If Trump refuses, he may even be subpoenaed by the grand jury and his testimony demanded. Trump is exposed and vulnerable. It is here – the most dangerous moment for Trump – that he needs more than ever a highly skilled lawyer to advise him, prepare him, and guide him.
Trump’s boast that “fame and fortune” would entice any lawyer to represent him is nonsense. Good lawyers for many reasons might shun him. Some of his lawyers have quit, or have been marginalized. He has rejected other candidates, and several prominent lawyers have refused to represent him. To responsible lawyers representing Trump may be a losing endeavor. The massiveness of the investigative record will make new representation extraordinarily complex and time consuming; Trump is known not to follow a lawyer’s advice; the lawyer’s reputation and his or her firm’s may suffer; and the lawyer may not get paid.
What kind of lawyer is Trump looking for? As Trump reportedly exclaimed at the time he was criticizing Attorney General Jeff Sessions, “Where’s my Roy Cohn?” Trump was referring to the vicious and reviled lawyer who had represented him for many years before he was disbarred in 1986, and died the same year. Given Trump’s almost pathological contempt for the rule of law and for Mueller’s investigation, which Trump repeatedly has disparaged as a “witch hunt,” Trump would likely want a lawyer like Cohn who would flout Mueller’s investigation, mock Mueller and his prosecutorial team as vindictive partisans, and refuse to cooperate. Would a responsible lawyer want to take on Trump’s scorched earth agenda? A good lawyer knows it would ignite a firestorm legally and politically and possibly hasten Trump’s impeachment.
Lawyers know that Trump has no legal privilege to avoid answering questions by Mueller’s prosecutors either in an informal interview or before the grand jury. Lawyers know that the grand jury has the power to compel testimony from Trump, as it did from Bill Clinton in the 1998 investigation by independent counsel Kenneth Starr into whether Clinton lied about having a sexual relationship with White House intern Monica Lewinsky. Lawyers know that the Supreme Court has consistently reaffirmed the awesome powers of the grand jury, stating that “the public has a right to every man’s evidence,” including the president.
If Trump’s new lawyer advised him to resist testifying, claiming, as did former President Richard Nixon, some type of executive privilege, he knows he will almost certainly lose. The Supreme Court decisively rejected that claim when Nixon refused to comply with a grand jury subpoena for records of conversations with White House associates.
If Trump is summoned by Mueller and despite his resistance is ordered by a court to testify, will Trump’s new lawyer advise him not to comply? If so, he knows that Trump can be held in contempt. To avoid this pitfall, Trump’s new lawyer could try to negotiate with Mueller some sort of compromise. It’s not inconceivable that Mueller might be willing to grant Trump some type of immunity and thereby compel his testimony. Immunity would prevent prosecutors from using Trump’s testimony against him.
But assuming that proof of Trump’s criminal offenses had already been discovered—such as proof of his obstruction of justice in seeking to halt the Flynn investigation or his firing James Comey—then despite giving him immunity Trump could still be charged with substantive crimes. And despite immunity he could always be prosecuted for perjury.
If Trump agreed to talk to the prosecutors, it is here that he faces his greatest peril and where a good lawyer is critically needed. Trump’s new lawyer would have to prepare Trump very carefully for the following areas of questioning:
- Did Trump know when he was running for president and hired Manafort as his campaign manager that Manafort had extensive financial dealings and lobbying work with Ukrainian and pro-Russian officials? Did he discuss Manafort’s connections with anyone?
- What was the basis for Trump’s decision to fire Comey? With whom did he discuss the firing? Did he discuss the firing with Sessions?
- Did Trump know that his son Donald Jr., son-in-law Jared Kushner, and Manfort met with a Russian lawyer during the campaign and allegedly obtained damaging information about Hillary Clinton? When did he learn about the meeting? From whom? What was his response.
- Did Trump alter Donald Trump Jr.’s initial statement about the Russia meeting, in which Don Jr. stated that he met to discuss Russian adoption but then changed this fabricated story to a new explanation that he wanted to judge Clinton’s “fitness.”
- Did Trump know that during his campaign his company was seeking to develop a real estate project in Moscow? What was he told? By whom?
- Did Trump have any financial dealings, projects, loans, and any other financial or other interests with Russia, Russian officials, and Russian business interests?
- Did Trump know of any contacts between persons involved in his campaign, such as Gates, Manafort, Papadopalous, and Carter Page, and Russian officials, including Russian intelligence operatives?
Lawyers know that as with criminal investigations generally, it is possible that the substantive offenses being investigated may not be able to be proved conclusively. Nevertheless, when a witness is confronted with specific questions about his knowledge of certain facts, previous statements, previous meetings, and other relevant details about subjects that reasonably should be memorable, it is not uncommon for the witness to lie.
Given Trump’s abundantly documented penchant for lying, brazenly, and almost reflexively, he will almost certainly expose himself to perjury. Protecting Trump here will be an enormous challenge for any lawyer. Faced with clear, specific, and non-ambiguous questions, Trump might be advised by his lawyer to claim an inability to remember.
But Trump is so mercurial that he also might decide to answer. That is exactly how Independent Counsel Starr was able to lay the foundation for the impeachment of President Clinton in effect by trapping Clinton into lying about his sexual conduct with intern Lewinsky. Trump would be much easier to trap than Clinton.
Even the best lawyer might not be able to protect Trump from his own self-destruction. But still, this is the time when Trump needs a good lawyer the most.
Professor Bennett Gershman is a Professor of Law at the Elisabeth Haub School of Law at Pace University, a former prosecutor in the Manhattan District Attorney’s Office, and a Special Assistant Attorney General in New York State’s Anti-Corruption Office.
[Image via Alex Wong/Getty Images]
This is an opinion piece. The views expressed in this article are those of just the author.