Trump's lawyers are leaning on a new defense strategy as Mueller homes in on the White House

Business Insider | Jan 13, 2018, 02.14AM IST

donald trump

Associated Press/Evan Vucci

President Donald Trump.

  • President Donald Trump's legal team is looking at a 1994 investigation into a Clinton administration official to provide the White House cover in the Russia investigation.
  • The case does not have the same fact pattern as the Russia probe, but experts say it still gives the White House negotiating power as Trump's lawyers seek to limit the scope of questioning if Trump sits down for an interview with special counsel Robert Mueller.

President Donald Trump's lawyers are using a 1994 independent counsel investigation into a Clinton administration official as a roadmap to limit the scope of questioning in the event that Trump is interviewed by special counsel Robert Mueller, Business Insider has learned.

The strategy, which was first reported by USA Today, is among a number of options Trump lawyers John Dowd and Jay Sekulow are examining as they prepare for Trump's interview with Mueller. Those include providing written responses to interview questions and submitting an affidavit saying Trump did nothing wrong, in order to avoid having Trump submit to a sit-down with the special counsel.

Dowd and Sekulow did not return requests for comment.

Trump's team is now leaning on a Clinton-era investigation into former Agriculture Secretary Mike Espy, who served between 1993-94. The independent counsel at the time, Donald Smaltz, charged Espy with 30 corruption counts, alleging that he improperly accepted gifts related to travel and accommodation from businesses and lobbyists.

The Clinton administration was at odds with the independent counsel over the scope of and application of executive privilege. An appellate court ultimately ruled in favor of the White House's argument and said presidential privilege applied not only to documents but also to presidential communications and testimony. Espy was ultimately acquitted of all 30 charges.

clinton espy

Greg Gibson/AP

President Bill Clinton speaks in the Rose Garden in Washington, Dec. 28, 1994, where he named outgoing Kansas Congressman Dan Glickman, center, as his choice to replace outgoing Agriculture Secretary Mike Espy, right. Espy was forced to resign under an ethical cloud in October.

David Sklansky, a professor of criminal law at Stanford Law School, said the Espy case "may well provide precedent for shielding some communications among President Trump and other White House officials."

And Jens David Ohlin, a professor at Cornell Law School, said he wasn't surprised that Trump's lawyers were looking closely at the Espy case.

"In one sense it would seem to be helpful to them, because the DC Circuit broadened the presidential communication privilege and upheld it not just for Bill Clinton personally but also for White House advisors working for him," Ohlin said.

Both Sklansky and Ohlin noted, however, that the executive privilege precedents established by the Espy case could ultimately hurt more than help Trump's defense.

"The Espy case makes clear that executive privilege is limited in important ways," Sklansky said. "The most important of these limitations is that it is only qualified privilege, which means it can be overcome by a showing of specific need by government investigators."

Ohlin agreed, noting that the DC circuit court held in the Espy case that the presidential communications privilege "is qualified, not absolute, and can be overcome by an adequate showing of need."

"That's clearly a balancing test that inures to the benefit of Mueller," Ohlin said. "And the court said that a prosecutor can demonstrate need by showing that the requested materials contain important evidence that is not available elsewhere. This provides Mueller with a roadmap for a successful argument."

Mueller's team has the resources to mount a strong response to Trump's lawyers if they invoke the Espy case as precedent to limit the scope of questioning. Michael Dreeben, a veteran appellate lawyer on the special counsel's team, will likely be spearheading the effort and experts say he is one of the few experts in criminal law who's equipped to handle such a case.

Trump's 'greatest risk'

Unlike Clinton in the Espy investigation, moreover, Trump could face criminal liability in the Russia probe.

Multiple reports have indicated that Mueller is building an obstruction-of-justice case against Trump based on his decision to fire FBI director James Comey last May. Comey told Congress last summer that Trump had asked him for his loyalty, and to consider dropping the FBI's case into former national security adviser Michael Flynn.

The information relevant to the investigation doesn't deal with Trump "merely being briefed on the criminal liability of a Cabinet member, but rather potential proof of the crime itself," said former federal prosecutor Jeff Cramer.

"The last thing in the world the White House lawyers want is a wide ranging interview with the special counsel," Cramer said. "There are far too many contradictory statements out there from Trump about why he fired Comey, if he knew Flynn lied to the FBI, and a host of other relevant issues."

"That is a prosecutor's dream interview," he added.

Ronald Klain, who served as Vice President Al Gore's top aide in the Clinton White House, said that "nothing about the Epsy case insulates the President from being interviewed."

"And given Trump's lack of discipline and focus, that is his greatest risk in terms of interaction with the Special Counsel," Klain said in an email. "Second, it's hard to see how Espy insulates Trump's campaign and prepresidency from scrutiny, and that's where there's risk on conspiracy with Russia and its agents."

Additionally, Klain noted, whereas the Espy probe "was from a (largely) pre-email era," Trump's communications with his transition team and White House advisers are "probably documented in many places that cannot be protected."

In any case, Klain said, "the horse may already be out of the barn. Who knows what Mueller already has right now as the Trump lawyers do their research?"

At the very least, experts said, the Espy case could put the White House in a position to negotiate with Mueller. But it remains to be seen whether that would benefit Trump - after the Clinton administration received a grand jury subpoena during the Espy case, the matter dragged on for three more years.

Lanny Davis, a former special counsel to Bill Clinton, said the strategy is "not going to work."

"No matter how much huffing and puffing Trump's lawyers do, they cannot escape a grand jury-issued subpoena," said Davis, who emphasized that he did not advise Clinton on legal issues related to the grand jury subpoena he was subjected to in the Monica Lewinsky matter.

"They either defy it and risk serious criminal risk, or they take the Fifth amendment and appear before the grand jury," Davis added. "So they can fight the grand jury subpoena and buy time, but looking at the precedents established in the Nixon case and by Clinton's lawyers, the chances of success are very small."

"Mueller holds all the cards here," Davis said. "And the political consequences of Trump defying a grand jury subpoena, and taking the Fifth, would be too much for him to survive."

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