President Donald Trump and his lawyers have made a strategic calculation that their fight against special counsel Robert Mueller is more political than it is legal.

They’re banking that the lead Russia investigator will follow long-standing Justice Department practice that a sitting president can’t be indicted, and that the only real threat to Trump’s survival is impeachment.


So long as that theory holds, Trump’s plan is to forcefully challenge Mueller in the arena he knows best — not the courtroom but the media, with a public campaign aimed at the special counsel’s credibility, especially among Republican voters and GOP members of Congress.

“The public strategy has now subsumed the legal strategy,” said a source who has worked with the president’s lawyers. “The public stance is fight, fight, fight. So the legal strategy is now fight, fight, fight.”

Trump’s legal team — now led by a talkative Rudy Giuliani — increasingly sees its goal as fighting potential impeachment proceedings by a Democratic-controlled Congress next year, according to multiple sources close to the White House.

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And while talks are continuing with Mueller on the prospect of a presidential interview, his lawyers are also lining up to battle Mueller all the way to the Supreme Court if the special counsel elevates the issue with a subpoena.

Trump’s new approach to the Russia probe is a stark contrast with how he handled the investigation in its opening months, when White House attorney Ty Cobb persuaded the president to waive any executive privilege and share thousands of pages of internal documents with Mueller’s team. Cobb also helped arrange interviews between Mueller and more than two dozen current and former Trump aides.

But Cobb is now departing the White House and will be replaced by veteran Washington attorney Emmet Flood, who brings his experience helping President Bill Clinton survive his own impeachment fight.

Trump and his lawyers believe Mueller has concluded that he cannot charge Trump with crimes and will go no farther than to issue a final report to his Justice Department supervisor, Deputy Attorney General Rod Rosenstein, likely in the hope that Rosenstein shares his findings with Congress.

“This is political,” said former Trump White House strategist Steve Bannon. “At some point in time, the American people are going to weigh in on this. That’s what Trump is doing. It’s not going to be just pure legal process. The legal process is going to attune itself to the political process. They are inextricably linked.”

Trump’s punch-for-the-gut strategy on the Russia probe — he’s been going after Mueller by name since mid-March, and his lawyers have also elevated their attacks in calling for the investigation to be shuttered and the investigators fired — does appear to be having an effect on the GOP base.

Mueller’s unfavorable rating among registered Republican voters has surged over the past month, with 51 percent telling the latest POLITICO-Morning Consult poll released Wednesday that they saw the special counsel in a negative light.

That’s the worst showing in Mueller’s numbers since the poll started asking that question on a regular basis last November, and a 10-point jump since the end of March.

The source who has worked with the president’s legal team said the more aggressive approach plays to skills that Trump knows well — and which rewarded him by his stunning 2016 election upset.

Trump believes “he can win the political fight even if he’s forced to testify,” said the source. “Even if he testifies and contradicts himself he still believes he can win the fight by taking it to the public. He’ll tweet. He’ll rally. He’ll do whatever it takes publicly to get his message out.”

Annemarie McAvoy, a defense attorney and former federal prosecutor who has represented Trump campaign deputy Rick Gates, said Trump’s team rightly sees political benefits from fighting the special counsel.

“From a lawyer’s standpoint, I want to argue it out in a public forum,” she said. “If the view of the public goes against Mueller and what he’s doing that could have an impact on what Mueller does.”

Trump’s aggressive approach comes at a time when his legal team is yet again in flux.

Giuliani on Wednesday electrified the internet and cable news with a Fox News interview in which he contradicted the president’s past public denials of knowing about a $130,000 hush payment his lawyer made to the adult film star Stormy Daniels in 2016. He also appeared to throw under the bus Trump’s son-in-law Jared Kushner, calling the senior White House aide “disposable.”

Two sources familiar with the president’s legal strategy said they were caught off guard by Giuliani’s comments, and White House press secretary Sarah Huckabee Sanders said during her daily briefing Thursday that she had not been aware of the president’s involvement in the payment to Daniels.

“A wholesale lack of discipline,” a source familiar with the president’s thinking said of Giuliani’s comments.

Bannon acknowledged Giuliani had caused some problems with his Fox News interview but said there’s a larger strategy at play here.

“Rudy is playing the political card,” Bannon said. “He’s on TV. It’s all about the midterms and getting the base fired up.”

Originally, the president’s Russia legal strategy leaned on White House Counsel Don McGahn and two of his longtime personal attorneys, Michael Cohen and Marc Kasowitz. But that team ran into trouble and gave way last summer to the team of John Dowd and Ty Cobb, who took on the Russia portfolio at the White House and urged Trump to waive executive privilege in a bid to see the investigation through to a timely conclusion.

The conservative First Amendment lawyer Jay Sekulow has also endured. Originally hired for his media skills, Sekulow has assumed a more expansive role that includes a focus on constitutional questions of presidential power.

Others legal eagles have joined the mix informally, including the retired Harvard law professor Alan Dershowitz and former federal prosecutor Joe diGenova, who was announced as part of the Trump legal team but later backed out because of conflicts.

DiGenova told a Baltimore radio station last month that he and his wife, Victoria Toensing, have been “playing the role of lawyers on television and in real life” for the president.

Flood initially turned down the president last year when asked to join the White House for the post that Cobb later accepted. Two sources said Flood ultimately consented to take the job at the urging of William Burck, a former colleague from the George W. Bush White House who now represents McGahn, Bannon and former White House chief of staff Reince Priebus.

Some of Flood’s peers scratched their heads at why the well-regarded GOP attorney would sign up for the seeming nonstop chaos and infighting of Trump’s circle.

“The mystery isn’t why Ty Cobb is leaving, it’s why Emmet Flood is joining a suicide mission,” said one lawyer close to the White House.

That attorney added that Cobb did deserve credit for helping right the ship from the Kasowitz era with his cooperative approach toward Mueller, and Cobb himself said in an interview his time in the White House had come to its natural end.

“I accomplished 98 percent of my assignment by mid-January in terms of coming on to handle the response to the special counsel,” Cobb said.

Former federal prosecutor Jon Sale — who dined with his former law school classmate Giuliani last weekend — cautioned that the addition of Flood and Giuliani to the Trump legal doesn't necessarily mean Trump is ready to wage all-out war with Mueller and the Justice Department.

“Bringing somebody with experience in dealing with an adversarial situation,” Sale said, “is the best way to have the parties cool down and find a fair resolution without going to war.”

Eliana Johnson contributed to this report.