Taking a Gamble
How Trump's lawyers won—and lost—in the Mueller probe.
May 31, 2019 at 11:59 PM
7 minute read
When President Donald Trump's legal team made the early decision to cooperate with Robert Mueller III's investigation, they successfully gambled that the strategy might help them avert a subpoena fight and a sit-down interview with the special counsel.
That strategy might have also backfired. Thanks to the witnesses and thousands of documents made available to the special counsel, the findings also contained details, often recounted through the eyes of Trump's aides, of how the president repeatedly sought to curb the Justice Department's inquiry into Russian interference in the 2016 election.
In his report, Mueller outlined the 10 episodes he probed where the president might have committed an obstructive act. He documented how Trump repeatedly instructed his aides to take steps to limit the inquiry, orders they largely ignored.
The special counsel ultimately declined to make a traditional "prosecutorial judgment" on whether Trump obstructed justice or attempted to do so. Instead, it was U.S. Attorney General William Barr and then-Deputy Attorney General Rod Rosenstein who made the determination to not prosecute Trump.
Both of those outcomes—the successful effort to avert a presidential interview, and the extensive detailing of Trump's apparent efforts to influence the Russia investigation—can be traced back to the White House's decision early in the probe to fully cooperate with Mueller, giving the special counsel virtually unfettered access to interview and obtain notes from top Trump aides.
It was then-White House lawyer Ty Cobb who decided early in the investigation to embrace an approach of cooperation, according to Cobb. Cobb, through discussions with the Justice Department and the special counsel's office, determined they needed to cooperate to face an accruing pile of requests.
But Trump's legal team, consisting of Trump's personal lawyer John Dowd and constitutional law attorney Jay Sekulow, also understood this served a larger purpose: At the time, the team reasoned that by supplying Mueller with information and witnesses, the special counsel would have less of a need—and therefore, a basis—for interviewing or potentially subpoenaing Trump.
Their strategy was guided by a 1997 D.C. Circuit decision in In re Sealed Case (Espy), a case revolving around an independent counsel investigation of Bill Clinton's agriculture secretary, Mike Espy. Trump's lawyers said they believed that, under Espy, Mueller could only obtain the president's testimony if the underlying information could not be obtained elsewhere.
While Trump's lawyers said they never foreclosed the idea of Trump sitting down for an interview, they understood that providing reams of documents and volunteering witnesses would give them leverage in a potential subpoena fight and negotiations for an interview. "To the extent that later in the game that became an issue and there was a desire not to do (an interview), we wouldn't have tripped in any fault lines," Cobb said.
Cobb says he was equally persuaded by a 2008 Office of Legal Counsel opinion that the White House could cooperate with the special counsel's office, while also retaining its ability to assert executive privilege in a potential dispute with Congress.
Trump's lawyers say their strategy helped head off a potential special counsel subpoena: "As the case progressed, and the information was provided and witnesses were provided, it became clear to us that they hadn't met the threshold" under Espy, Sekulow said.
The special counsel report says Mueller's office did not subpoena Trump "in view of the substantial delay that such an investigative step would likely produce at a late stage in our investigation." The report says Mueller "had sufficient evidence to understand relevant events and to make certain assessments without the President's testimony."
Still, thanks in part to the many documents and witnesses the White House made available to Mueller's office, the report extensively detailed how Trump sought to impede the Mueller inquiry. And the White House did not assert privilege to shield those parts of Mueller's report from spilling into public view.
There was White House counsel Donald McGahn's 30 hours of interviews; the notes of McGahn's chief of staff at the time, Annie Donaldson; and the notes and recollections of Jody Hunt, a former chief of staff to then-Attorney General Jeff Sessions; and now the current Justice Department Civil Division chief, whose notes revealed the president's reaction to Mueller's appointment as: "This is terrible. This is the end of my presidency. I'm f—ed."
Former federal prosecutors say Trump's legal team likely made the right move by cooperating with Mueller. Shanlon Wu, a former assistant U.S. attorney and counsel to former Attorney General Janet Reno, says if they pursued a "scorched earth tactic" of blocking witnesses and documents, those fights "would have ended up in the courts. Wu, now a white-collar defense lawyer at Wu, Grohovsky & Whipple, said most experienced lawyers would have gone the route of trying to have a reasonable dialogue with the special counsel's office, and avoiding the appearance of stonewalling.
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