“I’m looking forward to it.”
President Donald Trump said that with almost boyish enthusiasm in January when asked whether he would submit to testimony by Special Counsel Robert Mueller in the Russia probe. But Trump being Trump, he couldn’t stop there with his loud no-fear of testifying boast.
He took yet another big swipe at his former presidential rival Hillary Clinton and claimed that she didn’t testify under oath, but that he would. It was hyperbole to the nth degree, but Trump gave the impression that there would be no need for a grand jury subpoena to force him to testify about what he knew, when he know it, and more to the point, did he actually collude with the Russians in their blatant tampering with the 2016 presidential election.
Trump’s seeming effervescent confidence that he would talk voluntarily sans subpoena was just that, words. Trump’s testimony would be fraught with mountainous legal perils. His attorney knew that full well, and so did Mueller.
And weeks later there was still no date set for him to testify or a timetable for setting one. The prospect of him testifying set off a mad legal scramble behind the scenes by Trump and his attorneys to duck, dodge and delay him giving any testimony.
In the months before Trump’s public boast about testifying, Mueller laid the groundwork for what, if any case, could be made against Trump for collusion by pecking away around the edges.
He indicted several key Trump campaign and administration associates. He indicted 13 Russian nationals, and in the process blew open the details of how Russia pulled off its elaborate and wide-ranging presidential election scam.
He then followed that up by wringing a guilty plea to lying to investigators from a top-notch New York attorney about his work for a Ukrainian firm knee deep in the election scam. There almost certainly would be more plea deals from and indictments of those involved in some way in the scam.
However, these maneuvers were just the legal and public warm-up act to the main event. That is getting Trump to talk.
The Russia election probe always had one publicly stated official purpose and one privately unstated purpose. The official purpose was to determine if and how Russia meddled in the 2016 election. The FBI, CIA and National Security Agency, in separate reports in January 2017, firmly established that it had.
Then-President Barack Obama followed that up by ordering an investigation into the extent of Russian election meddling. The indictment of the 13 Russian nationals a year later simply fleshed out the details of the meddling.
Even Trump, in between lambasting the investigation as a hoax and shouting “no collusion,” was careful to add that he had never said that the Russians “or someone” hadn’t put their dirty fingers in the 2016 presidential election. So there was really little left to say about that part of the probe.
That left the unstated purpose for the probe, which was to determine if Trump, or someone operating at his behest, knowingly or unknowingly had their hands in the Russian scheme.
That left Trump. And this is where the peril lay for the president. If he voluntarily testifies, what would Mueller ask him? He could start by asking why he fired former FBI Director James Comey? The intent here would be to determine if the firing had anything to do with Comey’s well-known stance that the FBI would continue digging into the Russian election scam.
Trump, like any other citizen called to give testimony, could invoke the Fifth Amendment shield against self-incrimination. But that would not be likely for two reasons. One, other presidents have testified under oath when summoned by special prosecutors or independent counsels.
Gerald Ford testified in a case involving a Charles Manson follower. Ronald Reagan turned over information to Lawrence Walsh during the Iran-Contra probe. Bill Clinton testified three times to Kenneth Starr. And George W. Bush testified in respect to Valerie Plame.
For Trump to take the Fifth Amendment would ignite a legal and political firestorm that would badly tarnish him, his administration and its credibility.
Trump could simply stick to his well-worn script that he was not involved with the Russians and knew nothing about what they were up to. He would punctuate that by simply repeating again his oft-stated blast at Clinton that she lost the election not because of anything the Russians did, but because she was a lousy candidate.
The burden would then be on Mueller to try to pick apart Trump’s denials and nail him for lying or obstruction.
That would be a steep legal hill to climb for Mueller. That is why Trump will remain Mueller and the Russia probe’s major roadblock.
Earl Ofari Hutchinson is an author and political analyst. His latest book is “Forty Years Later: Why the Murder of Dr. King Still Hurts” (Middle Passage Press). He is a weekly co-host of the Al Sharpton Show on Radio One and the host of the weekly Hutchinson Report on KPFK 90.7 FM Los Angeles and the Pacifica Network.