Will Donald Trump Plead the Fifth or Be Subpoenaed?

By Jeffrey Toobin, The New Yorker

02 May 18

essage to President Trump: Please take the Fifth.

That appears to be the subtext of the nearly fifty questions, leaked to the press on Monday, that Robert Mueller, the special counsel, reportedly wants to ask the President. The questions, revealed in yet another scoop by the Times’ Michael S. Schmidt, do not appear to be word-for-word recitations of what the prosecutor will ask. Rather, they appear to be summaries of those questions, prepared by the President’s lawyers. But the gist is clear. Mueller seems to suspect that Donald Trump orchestrated an obstruction of justice in order to forestall the F.B.I.’s investigation of his campaign’s possible ties to Russia. Mueller also seems to have questions about the legality of the contacts between people affiliated with the campaign and Russians in the first place.

It’s usually a fool’s game to guess who leaked something, and why; the identity and the motives of journalists’ sources are difficult to fathom, even to the leaker and the leakee. But the message, intentional or not, of these questions is clear: there is no way that Trump should put himself in the position of answering them.

To date, Trump’s public comments about the Mueller investigation have generally fallen into two categories. First, he has repeatedly denounced Mueller’s inquiry as a witch hunt. Second, he has insisted, over and over again, that there was no collusion between his campaign and Russia. He has almost never addressed the specifics of the investigation, and when he has (as Mueller’s questions recognize) he has landed himself in trouble. For example, a central part of a possible obstruction case against Trump involves his decision to fire James Comey, the director of the F.B.I., in May of last year. In the immediate aftermath, the White House put out the explanation that Comey was fired for mishandling the investigation of Hillary Clinton’s e-mails during the 2016 campaign. But, in the following days, Trump made comments to Lester Holt, of NBC News, and to a group of Russian diplomats, in the Oval Office, to the effect that the firing was designed to forestall the Russia investigation—and thus constitutes a possible obstruction of justice.

The leaked questions try to get Trump to explain this contradiction. “What did you mean in your interview with Lester Holt about Mr. Comey and Russia?” one asks. “What did you mean when you told Russian diplomats on May 10, 2017, that firing Mr. Comey had taken the pressure off?” another asks. For Trump, there are no good—that is, non-incriminating—answers to these questions. Either the original explanation for the Comey firing was false, or else Trump was lying when he gave the second one. Or, given his lack of self-discipline, he may come up with yet another contradictory explanation. Trump would greet many of Mueller’s questions with his characteristic filibusters, but this practice has limited utility in the face of a disciplined questioner. The President would surely try to run out the clock on an interrogation of limited duration—which his lawyers would insist on—but Mueller and his team would probably have some success in obtaining at least some categorical answers from him. And Trump’s absence of good options for answering questions about the reasons for Comey’s firing would recur in many of the areas of Mueller’s interest.

Any sane lawyer would try at all costs to avoid putting a client in this kind of position. But Trump’s legal team has limited options. In public, Trump and his lawyers have presented the matter of whether he answers Mueller’s questions as one of the President’s choosing. It is not. If negotiations over a voluntary interview break down, Mueller will surely issue a subpoena for the President’s testimony. Trump could fight the issue in court, but Supreme Court precedent, from the Nixon and Clinton eras, suggests that Trump would fail to quash a subpoena for his testimony. The courts would demand that Trump testify. What, then, would Trump’s options be?

There are just two. He could testify, and hope that his answers land him in less trouble than he already faces. Or he could take the Fifth—that is, refuse to answer on the grounds that the answers might incriminate him. This, to be sure, is perilous political ground. The public tends to regard taking the Fifth as an admission of guilt. And Trump himself, in a question surely to be endlessly cited, has said, “If you are innocent, why are you taking the Fifth?” But he has apparently already taken the Fifth in the course of his complex history of civil litigation. And he could present taking the Fifth now as a form of protest against an illegitimate and unfair investigation—a view already shared by a substantial portion of Republicans across the country.

If he took the Fifth, Trump would surely endure a few days of bad press, and his assertion of his rights would become an indelible part of his record as President. But would his approval rating, which has rarely strayed more than a few points north or south of forty per cent, really be hurt? Would his supporters desert him? I doubt it. Opinions about Trump, especially in connection with the Russia investigation, seem fixed and immobile. Mueller’s detailed and fraught questions suggest that the risk in answering them far outweighs the risk of just saying no.