Trump likely would win a Supreme Court fight over attempts to compel his testimony, and it could be the spark Republican and Trump voters need to turn out in November 2018.

I’m still shaking my head in disbelief at Rudy Giuliani’s idea that if Robert Mueller and his team agreed to wrap up the “obstruction” investigation by September 1, Trump would sit for an interview.

I covered this development in my prior post, Rudy’s terrible, horrible, no good idea about Trump sitting for a Mueller interview to speed things up:

[Refusing an interview] is such a no-brainer, I’m really worried Rudy Giuliani, who is Trump’s new key legal advisor, will screw it up. At least as reported, it appears that Rudy is doing just that, and has suggested to Mueller that any interview would be contingent on an end date to the investigation…. This is a horrible idea on so many levels. It will not even wrap up the Russia investigation. It will end nothing. If Mueller wants Trump to sit across the table from him and answer questions, he should have to fight for it, and Trump should fight back. To the Supremes if need be. This is about the survival of Trump’s presidency which is being pursued by Mueller’s posse of hired guns…. In news of other horrible ideas, I plan on a Legal Insurrection “Swimming with the Sharks” trip just before which I will throw some blood in the water to see which way the current is moving.

The best I can make of Rudy’s move is that it’s not serious. That he was just floating an idea that will go nowhere. I wish I had confidence in that spin.

If Trump refuses an interview, Mueller’s only choice would be to subpoena Trump to testify before the grand jury. I think Trump would win a Supreme Court battle over such a subpoena unless Mueller could show a compelling need for information that only is in the possession of Trump and only could be obtained via live testimony.

Ted Olson explains why this is the likely outcome in a column at The Weekly Standard:

Can special counsel Robert Mueller require President Trump to testify before a grand jury? It would be unprecedented, and his effort to do so could lead to a major constitutional confrontation…. The president is not “above the law”; there are many court decisions saying so. But the Constitution is part of the law, and it makes the president the sole repository of the executive power of the United States. He is therefore not just like any other citizen. As things now stand, Mueller has not made, or even attempted to make, a record to explain why he would be justified in invoking the power of the judiciary to compel the president to show up before a grand jury—without a lawyer—and answer whatever questions Mueller and his army of prosecutors may put to him. Two Supreme Court decisions have been cited by some commentators as precedents authorizing compulsive judicial authority to force a president to testify before a grand jury. But neither case goes nearly that far. Indeed, both decisions are explicitly limited to the unique circumstances that gave rise to them…. …While the president’s presumptive privilege against compulsive testimony would be entitled to considerable deference, that claim could be overcome if the prosecutor makes a strong showing that he must have specific essential evidence that is not procurable from other sources and that he is not simply engaged in a fishing expedition.

That’s a fight Trump needs.

Appeasing Mueller through cooperation over document production has achieved nothing so far. Such document cooperation was the correct decision, but has not satiated Mueller’s team in the least. Mueller takes an expansive view of his jurisdiction, extending to investigating persons associated with Trump’s campaign in some way in the hope of finding a crime. This is an attempt to criminalize Trump world either directly (Manafort) or indirectly (Cohen via the SDNY US Attorney’s Office).

There are almost daily reports that Mueller has expanded his investigation geographically as well, probing alleged campaign ties to Middle Eastern countries and persons.

The world currently is Mueller’s oyster, and he’s enjoying the meal too much to be trusted. An interview is a trap, plain and simple.

Particularly if Trump offers to answer questions in writing, Mueller would be hard pressed to justify dragging the President before a Grand Jury.

Trump needs to confront Mueller’s investigation, not try to appease it. The fight Trump needs is to refuse to be interviewed by Mueller, or to appear before a Grand Jury if Mueller subpoenas him.

The public will back Trump on this. The investigation, which once had overwhelming support, not is viewed by most as politically motivated. If Trump has fully cooperated on document production, and in light of dozens of White House and campaign personnel having been interviewed, and attempt to drag Trump in front of a Grand Jury almost certainly would be viewed as a political move.

A fight with Mueller coming on the cusp of the midterms also would benefit Republicans. It would motivate Republican and Trump voters, in an election cycle where motivation is Democrats’ best advantage.

Confronting, not appeasing, Mueller’s posse is a winning strategy. Trump should take it.



