Trump To Plead the De Facto 5th -by- Josh Marshall

[kentuck]

From Talking Points Memo:

<snip>
The Times is reporting that the President’s personal lawyers are recommending that he refuse to be interviewed or questioned by Robert Mueller’s investigators under any circumstances. Let’s be candid about what this means. The President is pleading the 5th while trying to avoid saying that’s what he’s doing. Let’s call it the de facto 5th. The constitutional law is clear cut. It’s not at all hypothetical. A sitting President has no blanket right to refuse to cooperate with a criminal investigation. Different dimensions of this question were litigated under Presidents Nixon and Clinton. The Courts were clear each time. The President has to comply with the law and with criminal investigations just like everyone else, though there may be certain areas of privilege. Presidents have been interviewed by special prosecutors, special counsels and independent counsels in numerous cases. The President is obviously guilty of obstruction of justice. He’s likely guilty of criminal conspiracy with a foreign power, though what if any statutes this would implicate is not clear to me. It makes perfect sense to refuse to talk. Perps do that all the time. It’s their right.

There are two notable points in the Times write-up of the story.

First, the President’s lawyers’ argument appears to be that the President is innocent of any crimes but that he is also a pathological liar. That could leave him vulnerable to a perjury charge. This isn’t my gloss. According to the Times, that’s their argument: “His lawyers are concerned that the president, who has a history of making false statements and contradicting himself, could be charged with lying to investigators.”

The other notable claim is that Trump’s lawyers and advisors believe that if Trump refuses a voluntary request for an interview, which is his right, Mueller might lack the nerve to subpoena him. “The lawyers and aides believe the special counsel might be unwilling to subpoena the president and set off a showdown with the White House that Mr. Mueller could lose in court.”

I think it’s very possible that Mueller would not indict the President, even if he believes he has clear and convincing evidence that he committed a crime. (While I don’t have entirely settled views on the matter myself, I actually think there are decent prudential, even not narrowly legal, reasons why a sitting President should be impeached before being indicted.) But I have a very hard time believing that if Robert Mueller believes questioning the President is necessary for his investigation that he won’t subpoena him. That seems quite out of character for the man and inconsistent with what we know about the investigation.

...more at link: https://talkingpointsmemo.com/edblog/trump-to-plead-the-de-facto-5th

Also: https://www.nytimes.com/2018/02/05/us/politics/trump-lawyers-special-counsel-interview.html

[Tatiana]

1. Mueller will subpoena him. This is a no-brainer.

Are they forgetting the predawn raid on Manafort's house?

He is very dogged and unafraid.

[SummerSnow]

2. He went from nothing burger to pleading the 5th

[lindysalsagal]

3. Answering to judiciary is part of the job of potus. I say he's resigned if he's refused. POTUS

is a job that he swore to uphold. He just refused to uphold rule 1: Answer to the people.

[kentuck]

4. I think Mueller will have the endurance to maintain this battle...

...but to suggest that he "might lack the nerve to subpoena him" is rather a challenge to justice.

I think Mueller will begin subpoenaing those close to the Trump camp, perhaps one at a time until Donald Trump agrees to talk with the Congress-approved Investigator? Perhaps Hope Hicks will be the first one? Then maybe Jared Kushner? Then maybe Don Jr? Then ask Mr Trump again if he would like to talk with the Special Counsel, representing the people of the United States, as voted and approved by the majority of Congress of both Houses?

The Law must be obeyed. Especially by those at the highest branches of our government.

If the People, as represented by their Representatives, fail in their mission to protect the Constitution and the law, then our democracy will have taken a mortal wound. We can never surrender the argument that "no man is above the law".