What’s The Strategy Relating To A Possible Mueller Subpoena? [UPDATE: Ty Cobb Out As Trump Lawyer]

Ken AshfordCourts/Law, L'Affaire Russe, Trump & AdministrationLeave a Comment

The Washington Post reported yesterday that Special Counsel Robert Mueller’s office has threatened to subpoena the president’s testimony in the Russia probe:

In a tense meeting in early March with special counsel Robert S. Mueller III, President Trump’s lawyers insisted he had no obligation to talk with federal investigators probing Russia’s interference in the 2016 presidential campaign.

But Mueller responded that he had another option if Trump declined: He could issue a subpoena for the president to appear before a grand jury, according to four people familiar with the encounter.

I didn’t think it was “big news” that Mueller essentially threatened to subpoena the President. That is his ace in the hole. It is relevant only in that it points out he had to make the threat at all, indicating that negotiations were at an impasse.

What’s going on now between the Mueller camp and the Trump camp is a complicated multi-level game of chicken that is best understood not in terms of law but as a structured game. On the one side? How badly Mueller needs – needs, not wants — Trump’s testimony.  On the other side?  How much can Trump avoid having to testify?

Wittes uses game theory:

The bottom line is that a subpoena is a weapon the special counsel has in his arsenal but does not want to use. Its use involves, first, a long delay and, second, a possibility (albeit a small one) of a loss that would set him back and set (from his point of view) a bad precedent. Mueller, in short, is using the threat of a subpoena to coax what he actually wants—which is a consensual interview. This kind of staring contest is not without precedent: a similar one took place between Bill Clinton and Kenneth Starr. Clinton ultimately backed down and appeared before Starr’s grand jury.

Now look at the matter from the perspective of Trump’s legal team—at least if it were acting rationally. (This may be condition contrary to fact, but let’s run with it for now.) It is a simply terrible idea for Trump to sit for an interview. He’s a liar; he talks both impulsively and compulsively, and he probably has some legal exposure if he tells the truth. So the interview is a lose-lose proposition. This is particularly the case if his lawyers believe that Mueller has nothing serious on Trump personally without an interview but believe the president may lie if he sits for one—and his greatest criminal exposure involves not what he has already done but the lies he is likely to tell.

Normally, in such situations, the subject asserts his Fifth Amendment right not to incriminate himself—the whole purpose of which right is to relieve the so-called “cruel trilemma” of self-incrimination, perjury, or contempt. But while the president has a right to assert the Fifth, he can’t easily do so without serious political damage. So the alternative for his legal team is to bet that Mueller won’t actually pull the trigger and issue the subpoena, either out of fear of litigation defeat or out of desire not to delay. Rather than assert the Fifth, the Trump team is playing chicken with Mueller.

The problem with this strategy for the president is that the risks associated with losing a litigation are dramatically higher for him than they are for the special counsel. Remember that the law favors Mueller. What’s more, if Mueller issues the subpoena, Trump resists it, and the court enforces the subpoena, Trump loses all of his negotiating leverage. Gone is the chance of negotiating a congenial environment for an interview, limiting the time, or having his attorneys present. The normal grand jury witness, after all, has to go into the grand jury room alone.

I would add that, politically, the president fighting the subpoena just looks bad. It looks like he is running. It looks like he is scared. It contradicts all his statements that he would be looking forward to talking to the special counsel.  Back to Wittes:

Moreover, time may be an annoyance to Mueller, but it could be much worse than that for the president. A responsible lawyer for Trump has to protect him from the possibility of having to walk into the grand jury room alone, say, a week before the midterm elections. Time is not on Mueller’s side, but it’s really not on Trump’s side.

In other words, refusing consent for an interview may solve Trump’s cruel trilemma problem in the immediate term but it’s also a roll of the dice in which the downside risk is unacceptably bad and not all that improbable.

So the question is: Who blinks first? Does the Trump team decide to negotiate the terms of an interview rather than risk litigation it is likely to lose? Or does Mueller back down and not follow through on the subpoena threat—thus letting Trump off the hook?

Right. So the question falls back on “How badly does Mueller really need Trump’s testimony?”

Now. for obstruction, I think it is pretty important. You need to know what Trump’s intent was.  However, in Mueller’s favor, we KNOW why Trump fired Comey — HE TOLD US:

Is that enough? And is Trump willing to say something different under oath? Doe Mueller have emails or documents or testimony from other people explaining why Comey was fired?

I think Wittes sums it up nicely:

To boil it down, here’s what we can say about the possibility of an T

rump interview:

First, the logic of the situation favors a negotiated outcome. Neither side has an interest in a protracted litigation, and both sides have litigation risk. As the probable outcome of any such litigation is a Mueller win, the situation favors negotiated resolution on terms broadly favorable to Mueller.

Second, if Mueller really needs the interview, he’s going to get it. The litigation risk for Trump is dramatically higher than the risk for the special counsel’s office. That means that the moment Trump’s team truly believes that the alternative to a voluntary interview is losing in litigation, the Trump team will negotiate terms for an interview—or it will take the political hit of asserting the Fifth.

Third, conversely, if Mueller does not really need the interview, he may well blink and let Trump get away with not sitting for one. Indeed, if neither an interview nor a subpoena materializes, that is a sure sign that Mueller is content to proceed without hearing from Trump. That could mean either that his case is weak or that it is strong. It indicates that his ultimate decisions as to how to proceed do not depend on what Trump has to say.

No doubt, the lawyers for Trump are praying for Option Three.

Fourth, in any negotiated interview, the more accommodations Mueller is prepared to make to Trump, the less crucial we can assume the interview is to his investigation. If the interview is a make-or-break thing for Mueller, he will hold the line and make sure Trump sits for live questions. If he allows written answers, that’s a sign the stakes are lower for him, for one reason or another. In my judgment, the mere fact he was willing to telegraph so much subject matter to Trump’s lawyers suggests that he doesn’t really need Trump’s input that much; if the interview were truly high-stakes for Mueller, I doubt he would give the Trump team the opportunity to script answers for him.

This is an interesting take by Wittes.  We now know the questions that Mueller was interested in, because Trump’s lawyers were told.  Mueller showed his hand (not to us, but to Trump’s lawyers), which means he probably has more up his sleeve.

Finally, if a subpoena issues, that is not the endpoint of the game but an escalation of it—a sign that neither side has blinked yet. The essential logic of the situation persists until there is an actual court order changing the negotiating status quo or a negotiated interview to avert the litigation. An accommodation is possible even after litigation has begun.

True. And a court could even encourage or push for further negotiation. And if that happens, Trump’s lawyers would take that as a sign they will lose, and probably give Mueller what he wants.

And then we start analysis on the wisdom or stupidity of Trump taking the Fifth.

UPDATE — Cobb  out; New guy in —

NY Times:

President Trump plans to hire Emmet T. Flood, the veteran Washington lawyer who represented Bill Clinton during his impeachment, to replace Ty Cobb, the White House lawyer who has taken the lead in dealing with the special counsel investigation, who is retiring, according to two people briefed on the matter.

In a phone interview, Mr. Cobb said he informed the president weeks ago that he wanted to retire. He said he planned to stay at the White House, likely through the end of the month, to help Mr. Flood transition into the new job.

“It has been an honor to serve the country in this capacity at the White House,” he said. “I wish everybody well moving forward.”

Mr. Flood is expected to take a more adversarial approach to the investigation than Mr. Cobb, who had pushed Mr. Trump to strike a cooperative tone. Mr. Flood initially spoke with the White House last summer about working for the president, but the talks ultimately fell apart because Mr. Flood did not want to deal with Mr. Trump’s longtime New York lawyer, Marc E. Kasowitz, who was overseeing the president’s dealings with the special counsel at the time.

Mr. Flood’s hiring has not been made final, the people cautioned, noting Mr. Trump’s practice of reneging on personnel decisions after they are reported in the press.

Assuming this happens, it shows that the legal strategy for Trump is to play hardball.

But hey, remember this?

That was less than two months ago. Now two of those three are gone.

Interesting choice of words from the White House press office:

As for Cobb leaving… maybe he wasn’t a fighter, but he may have been the smartest:


I’m not sure Emmett Flood can act as Trump’s criminal defense lawyer and WH counsel. In fact, I know he can’t.