Despite President Trump’s declarations that he has expansive powers that could blunt the special-counsel investigation, his legal team is preparing for the possibility of a presidential interview, or a legally precarious subpoena battle over such a sit-down.
Trump declared in tweets Monday that he has the “absolute right” to pardon himself and called the special counsel unconstitutional, the latest efforts by the president and his lawyers to assert his authority over the federal law enforcement system.
But private moves by Trump’s attorneys and advisers indicate that — despite the president’s public bravado — they are readying for a fraught legal confrontation that could have far-reaching consequences.
Trump lawyer Rudolph W. Giuliani has acknowledged in recent interviews with The Washington Post that the outcome of such a showdown is uncertain.
“Both sides are taking a big risk with a subpoena fight,” he said.
Special counsel Robert S. Mueller III is investigating Russia’s efforts to help elect Trump and whether Trump sought to block the probe into contacts his associates have had with Russians.
As the two sides head toward a confrontation over a presidential interview in the coming weeks, newly hired White House lawyer Emmet Flood and other attorneys are strategizing about how to handle a subpoena from Mueller that would seek to compel Trump to testify in the investigation.
Several White House officials said Flood has cautioned Trump and others about the unpredictability of a subpoena fight that could be decided by the Supreme Court. Such a case would be unprecedented. Independent counsel Kenneth W. Starr served President Bill Clinton with a subpoena to compel him to appear before a grand jury, but it was withdrawn after Clinton agreed to testify voluntarily.
“There’s not a lot to research, because it’s never been decided,” Giuliani said. “No one has ever tested completely the privilege.”
Meanwhile, Giuliani and other advisers have begun making plans to prepare Trump for a possible sit-down with Mueller. They are eyeing a few special guests — including former New Jersey governor Chris Christie (R) — to conduct practice sessions with the president.
Giuliani said Monday that Christie, who played the role of Democratic candidate Hillary Clinton in Trump’s 2016 debate preparations, would “be willing to do it as [a] volunteer.”
“I’d like to bring Chris Christie in,” he told The Post last week, adding Christie “is willing to do it.” Trump “and Chris get along, and Chris is a lawyer, so you have attorney-client privilege,” he added.
Christie did not respond to a request for comment before this story published online, but said in a tweet Monday night that he had not “been asked by anyone to do anything of the sort.”
Another new Trump lawyer, Jane Raskin, talks with Mueller deputy James Quarles at least three times a week. She is reviewing the classified conversations Trump and other top aides have had with foreign leaders, such as Russian Foreign Minister Sergei Lavrov, according to two people familiar with her work, but also is working to negotiate possible terms and limit questions Trump might face in an interview.
And inside the White House, officials have tried to begin delving into key subjects with the president that might come up in a session with Mueller. However, the fledgling briefings have not gone very deep, because of the president’s anger about the probe, according to a person familiar with the situation.
“As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?” Trump tweeted Monday. “In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!”
A spokesman for the special counsel’s office declined to comment.
Trump’s assertion about his pardon powers followed revelations that his lawyers wrote a confidential January memo to Mueller arguing Trump could not have obstructed the probe, because, as president, he has total control over all federal investigations.
Legal scholars differ on the issue of whether the president can pardon himself — and even some Republicans questioned the reading of the law by Trump’s legal team.
“If I were president and somebody, some lawyer told me that I could do that, I’d hire a new lawyer,” Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) told reporters.
Sen. Susan Collins (R-Maine) said that while constitutional scholars differ on whether Trump could pardon himself, “there’s no doubt that the president is not above the law and it would be a tremendous abuse of his authority if he were to do so — as well as remarkably unwise.”
Trump’s controversial assertion comes as his legal team is in talks with Mueller about a presidential interview. The special counsel told Trump’s attorneys earlier this spring that he needs to question the president about his intent to finish a report on possible obstruction of justice.
Mueller and his deputies first warned the president’s lawyers in March that they could try to force Trump to the interview table with a grand-jury subpoena.
Giuliani said he’s “leaning against” an interview and thinks Mueller can finish his report without it.
“They’re not going to get much out of an interview that they don’t have already,” he said. “If I were them, I would go straight to the report. If they’re going to condemn him, they’ll condemn him. If they’re not, they’re not.”
If Trump declines an interview and Mueller subpoenas him, both sides face major risks in the Supreme Court battle that could ensue. There is no settled law on whether prosecutors can force a sitting president to testify.
A court fight over subpoenaing a sitting president could take months — dragging out Mueller’s probe and maintaining a cloud of suspicion over Trump’s presidency.
If Mueller lost, the decision could weaken the powers of the special counsel and spark criticism that he was overzealous.
If Trump lost, he would be forced to answer questions in a grand-jury box without a lawyer at his side — a situation that advisers fear would be risky for a president prone to exaggerations.
And such a ruling could dramatically limit the power of the chief executive — making him the first president in the country’s history to be forced to comply with a criminal subpoena.
Clinton was the first president subpoenaed to testify in a criminal probe, before his lawyers negotiated the terms of a voluntary interview instead.
Neal Katyal, a former U.S. solicitor general who helped write the 1999 regulations governing the special counsel’s work while a Justice Department official, said that if a judge ruled against Trump on the subpoena issue, the legal arguments cited by the court could help establish that the president can be indicted — overruling two past Justice Department opinions.
“The rationale behind why a president can’t be indicted is very similar to the argument that the president can’t be subpoenaed. It’s a microcosm of it,” he said.
Flood, working out of a downstairs West Wing office near the Oval Office, has taken the lead in analyzing Trump’s legal options and his ability to fend off Mueller if he seeks to compel an interview, according to one senior official.
Another person familiar with the White House’s internal deliberations said that Trump’s lawyers have concluded there is a legal distinction between an interview about events that occurred during the campaign or presidential transition — while Trump was a private citizen — as opposed to after the inauguration, when he could assert executive privilege.
The person said the White House has concluded Trump would be more likely to agree to an interview that was limited to questions about the campaign and transition, in part because he has less of a chance of winning a legal argument should he resist. His attorneys also believe that Trump faces little risk or legal liability about actions he took before becoming president.
However, they have concluded they would have a stronger case to fight a subpoena if Mueller tries to compel Trump’s testimony about actions he took as president — questions that would probably go to the heart of the special counsel’s obstruction investigation.
Seung Min Kim, Sean Sullivan, John Wagner and Matt Zapotosky contributed to this report.