- The Washington Times - Wednesday, February 14, 2018

President Trump’s legal team is citing a three-pillar argument to convince investigators, and the public, that President Trump shouldn’t sit down for an interview with special counsel Robert Mueller.

Mr. Mueller wants access to the president as part of an inquiry into suspected obstruction of justice in the firing of the special counsel’s longtime friend, FBI Director James B. Comey, in May. The president’s legal team has resisted but not given a firm no.

Here are the arguments against an interview.

• The White House has given Mr. Mueller unprecedented access to White House documents and people.

• There is no stated crime.

• A 1997 decision by the U.S. Court of Appeals for the D.C. Circuit, during the Clinton administration, put the onus on prosecutors to exhaust evidence avenues before turning to the president.

DOCUMENT: Appeals court ruling puts onus on prosecutors to exhaust evidence before turning to president

Concerning transparency, the Trump campaign turned over to Mr. Mueller 1.4 million pages of documents. Attached were all search terms and a comprehensive log.

More than 20 White House officials voluntarily sat down for interviews. They included White House counsel Don McGahn and seven members of his staff, as well as former Chief of Staff Reince Priebus. Also, 28 campaign officials and associates have been interviewed.

“All the credit goes to the president,” John Dowd, one of the president’s attorneys, told The Washington Times last month as he released the scorecard. “He wanted Bob Mueller to have everything, and Ty Cobb made it happen.”

Longtime criminal defense attorney Ty Cobb is part of Mr. Trump’s legal team.

Trump associates say there is no crime to investigate, at least not one articulated by prosecutors. Suspected collusion with Russia to interfere in the presidential election remains unverified, and Mr. Trump has the constitutional power to fire any executive branch employee.

Mr. Comey and FBI Deputy Director Andrew McCabe testified to Congress that the Russia-Trump investigation was not interrupted.

Andrew C. McCarthy, a former assistant U.S. attorney, argued that a president innately cannot obstruct a counterintelligence investigation, which is what Mr. Mueller is conducting, because such an inquiry is intended for the president to assess dangers to the country.

“The president cannot interfere in a counterintelligence investigation,” Mr. McCarthy wrote in National Review. “Trump can no more obstruct the Russia investigation by taking actions that could conceivably affect it than Obama could obstruct the Russia investigation by being briefed on it and giving the FBI directions on it. Counterintelligence investigations are conducted for the president.”

The Clinton-era court case cited by the Trump team revolved around Agricultural Secretary Mike Espy.

A grand jury indicted Mr. Espy on 30 counts of taking bribes — gifts — from department vendors. A D.C. jury acquitted him of all charges.

Pretrial independent counsel Donald Smaltz sought a pile of White House documents. The executive branch said no to 84 of them.

The U.S. Court of Appeals heard the case and decided in June 1997 that Mr. Smaltz was entitled to some documents but that others were protected under privileged presidential communication.

Its opinion stated, “To overcome the presidential privilege it is necessary to demonstrate with specificity why it is likely that the subpoenaed materials contain important evidence and why this evidence, or equivalent evidence, is not practically available from another source.”

The “subpoenaed materials” in the Mueller probe are Mr. Trump’s sought testimony. The “another source,” in Mr. Trump’s argument, would be the documents and interviews made available to Mr. Mueller.

The Trump attorneys argue that the case backs their argument that Mr. Mueller has all the information he needs without the president’s testimony.

The Washington Times asked constitutional law scholar Jonathan Turley if the Espy case prevents Mr. Mueller from questioning Mr. Trump.

Mr. Turley answered no, with a caveat: Since the White House has provided a good deal of material, Mr. Mueller would be required to spell out exactly what other issues he needs resolved by talking directly with the president.

“There is merit in citing the case,” said Mr. Turley, a law professor at George Washington University.

“It does accurately show the test for presidents giving sworn testimony,” he said. “But the problem is that Mueller easily satisfies that standard, in that Trump clearly possesses material information to an ongoing criminal investigation. So the Espy standard is not a barrier to Mueller even if it were to be applied by the court.”

But, he said, Mr. Mueller must show his cards.

“That’s where the case is most useful,” he said. “I don’t think it’s a very effective standard to claim the president can refuse any sworn testimony. But it is a good precedent to assert the right of the president to learn with specificity what areas the special counsel wants to delve into.

“Having said all that, since the president himself is part of the investigation, it’s doubtful that White House officials can entirely answer the questions being raised by the special counsel. The Espy case is usable in demanding specificity. It is also useful in limiting questions in light of the availability of other White House officials.”

Legal analysts have opined that the president may face a “perjury trap.” His inquisitors will be schooled in virtually every meeting, email and memo created over two years or more. They will ask the president to recall what specific people said to him and what he said in reply.

Last month, Mr. Trump expressed a willingness to testify under oath.

The 1997 appeals court opinion ended with this statement:

“In holding that the privilege extends to communications authored by or solicited and received by presidential advisors and that a specified demonstration of need must be made even in regard to a grand jury subpoena, we are ever mindful of the dangers involved in cloaking governmental operations in secrecy and in placing obstacles in the path of the grand jury in its investigatory mission. There is a powerful counterweight to these concerns, however, namely the public and constitutional interest in preserving the efficacy and quality of presidential decision-making.”

• Rowan Scarborough can be reached at rscarborough@washingtontimes.com.

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