May 4, 2018
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President Trump should adopt Nancy Reagan’s famous slogan in his current fight with Robert Mueller. When asked to testify, Trump should “just say no.”
Based on the April 30, 2018, New York Times story “The Questions Mueller Wants to Ask Trump About Obstruction, and What They Mean” by Matt Apuzzo and Michael S. Schmidt, many of the questions Mueller wants to ask President Trump are absurd. They are clearly a trap to establish a case for obstruction of justice or perjury.
Virtually no American could answer these questions with any certainty of detail. Consider this one: “What did you think about Mr. Comey’s intelligence briefing on Jan. 6, 2017, about Russian election interference?”
President Trump has spent more than 400 days in office, and Mueller would like him to accurately recall his thoughts about a particular meeting on a particular day. Remember, this is not a casual conversation. This is a criminal investigation seeking to use the full force of law to lock people up – just ask former National Security Adviser Mike Flynn or Vice President Cheney’s former Chief of Staff Scooter Libby, who was trapped into perjuring himself during the Valerie Plame case.
You can be sure, Mueller will have interviewed everyone he could find who heard the President react to that meting 16 months ago. Mueller will have transcripts of everything President Trump has said and tweeted about that meeting. He will have the endless interviews with Comey. Mueller will then listen to the President and use any error of memory or effort to embellish to manufacture an obstruction or perjury charge.
Ask yourself: Could you reliably remember every detail of a meeting you had at a particular time 16 months ago – and the totality of your reactions to it?
Why would we think that a president who is currently handling North Korea, Iran, China, Russia, Syria, tax cuts, health care reform, state visits, and other presidential duties is going to have the ability (or the time) to remember with absolute clarity and accuracy what happened 16 months ago?
Mueller expands the absurdity with his follow-on question: “What was your reaction to Mr. Comey’s briefing that day about other intelligence matters?”
Consider how many intelligence briefings President Trump has viewed since then. Consider how many different conversations the President has had with a wide range of people about the so-called Steele Dossier (reportedly the topic of that meeting). Again, Mueller will have interviewed people, recorded their versions, and will be prepared to measure the President’s memory against any slippage, error, or misstatement.
Andy McCarthy, a former federal prosecutor who has written extensively and wisely on this case, warned in a recent column that “the rules of the game are that Democrats get away with murder while Republicans get murdered.” McCarthy was comparing the treatment of the Obama campaign’s Federal Election Commission violations with what is being done to the Trump campaign. His analysis also applies to the effort to protect Hillary Clinton (no matter how many clear criminal actions she and her team have committed) with the elaborate effort to take down Trump – no matter how often the Left’s conspiracy theories fall apart.
Alan Dershowitz, a distinguished Harvard law professor and civil libertarian, has warned about prosecutors with a wide net who seek to entrap people: “It was Lavrentiy Beria who told Stalin, ‘show me the man, and I’ll find your crime.’ You can go through the federal criminal code and find crimes that virtually any businessman, any politician has committed,” Dershowitz stated on MSNBC.
Dershowitz also warned, “I do not trust the government. I do not trust judges. I do not trust prosecutors when they are zealously seeking to go after a particular target, in this case Donald Trump. Nobody would have been going after Michael Cohen if he weren’t Donald Trump’s lawyer. That’s the reality.”
McCarthy made the case for Nancy Reagan’s “just say no” strategy in a column earlier this week, asserting that, “Trump would be foolish to answer questions from Mueller, who has made a habit of turning witness interviews into false-statements prosecutions. More important, absent concrete evidence of his complicity in a serious crime, a president should not be put in the position of being pressured to answer a prosecutor’s questions. When Trump complains that the Obama Justice Department would never have permitted President Obama to be treated this way, he is right…
“Unless Mueller can demonstrate that a serious crime has been committed, that Trump was complicit in it, and that Trump is in possession of evidence that is essential to the prosecution, Rosenstein should bar him from seeking an interview, let alone issuing a subpoena demanding grand-jury testimony. This is not merely about protecting Trump; it is about protecting the office of the presidency.”
Earlier in the piece, McCarthy pointed out that the questions Mueller reportedly wants to ask the President indicate that there is no evidence of a crime and that Mueller is just wanting to “probe the chief executive’s motives and thought processes regarding exercises of presidential power that were lawful…”
He noted, “If Bob Mueller wants that kind of control over the executive branch, he should run for president. Otherwise, he is an inferior executive official who has been given a limited license — ultimately, by the chief executive — to investigate crime. If he doesn’t have an obvious crime, he has no business inventing one, much less probing his superior’s judgment. He should stand down.”
In an echo of Dershowitz’s reference to Stalin-era prosecutions, McCarthy warns: “The criminal law inquires into intent when actions patently violate criminal statutes; its purpose is not to manufacture crime by speculating about the intent behind apparently lawful actions.”
The patterns that McCarthy and Dershowitz describe are beginning to be more apparent. For example, a federal judge has accused Mueller’s team of using the case against Paul Manafort to target the President. According to Fox News, U.S. District Judge T.S. Ellis III, told Mueller’s team, “You don’t really care about Mr. Manafort… You really care about what information Mr. Manafort can give you to lead you to Mr. Trump and an impeachment, or whatever.”
Judge Ellis has questioned Mueller’s authority to prosecute Manafort on a number of charges related to an earlier DOJ probe. He ordered Mueller to supply an unredacted document detailing the scope of Mueller’s investigation – the same document the DOJ has previously declined to supply to House Republicans.
It is exactly this pattern of prosecutorial targeting which led former Mayor Rudy Giuliani to tell the Daily Beast, “Anybody who says that I’m exaggerating when I say that this is an out-of-control investigation and they’re acting like storm troopers––give me a break, baby! They prove it every day.”
“I contend the only crimes committed so far in this investigation are the ones they committed, the government committed.”
A close friend, who is a great litigator, suggested to me that President Trump should end the speculation with this statement:
“My lawyers tell me this is a farce, and when you see the proposed questions, you can see they are. So, I am not going to spend any time on it, and I am not going to answer their silly questions. I’ll leave it all up to the lawyers to give you the legalese, and I am sure there will be plenty. But, that’s for them. I have a great country to lead. So, just talk to them.”
“Just say no” is the only plausible answer to the Mueller fishing expedition.
Deputy Attorney General Rod Rosenstein must finally do his job and stop Mueller from seeking to subpoena the President or take him before a grand jury. Mueller is only as outrageous and out of control as Rosenstein tolerates. So, Rosenstein also has to learn from Nancy Reagan and just say no to Mueller’s power grab, too.
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