Will Donald Trump take Five and clam up? Rudy Giuliani refused to rule out the possibility that the president could use his Fifth Amendment rights to refuse to talk with Robert Mueller’s team even if they subpoenaed him, escalating the tension between the White House and the special counsel. “How can I be confident” that he won’t do so, Giuliani replied rhetorically when asked by ABC’s George Stephanopoulos about the possibility:
Pres. Trump's attorney Rudy Giuliani says he can't be confident the president won't invoke the Fifth Amendment if he speaks with the special counsel: "I've got a client who wants to testify… I hope we get a chance to tell him the risk that he's taking." https://t.co/bKAHeA5LAy pic.twitter.com/ZKCako038J
— This Week (@ThisWeekABC) May 6, 2018
President Donald Trump’s top personal attorney Rudy Giuliani said he can’t rule out the possibility of the president taking the Fifth Amendment if he testifies in the Russia investigation.
In an exclusive interview on “This Week” Sunday, Giuliani said to ABC News Chief Anchor George Stephanopoulos, “How could I be confident” that the president won’t take the Fifth Amendment?
The former New York City mayor also commented on the possibility of Trump getting subpoenaed by the special counsel to testify. “We don’t have to” comply with a subpoena, he said.
“They don’t have a case on collusion, they don’t have obstruction … I’m going to walk him into a prosecution for perjury, like Martha Stewart did?” Giuliani said. “He’s the president of the United States. We can assert privilege other presidents [have].”
What privilege would that be? The Washington Post’s brief analysis points out that two other presidents have tried asserting that subpoenas do not apply to sitting presidents. Need we ask Richard Nixon and Bill Clinton how those turned out? After Stephanopoulos reminded him of that history, Giuliani allowed that testimony eventually was proferred — but on the terms of the president, not the interrogators:
Pres. Trump’s attorney Rudy Giuliani tells @GStephanopoulos “we don’t have to” comply with a potential subpoena from the special counsel, adding “He's the President of the United States. We can assert the same privileges other presidents have.” https://t.co/R6JsMQN9yM pic.twitter.com/RX6MLYeQ2e
— This Week (@ThisWeekABC) May 6, 2018
And, er … need we ask how that turned out for Clinton? He walked into a perjury trap, one that a lawyer should have seen coming. Trump, who isn’t a lawyer, will be walking into a veritable Korean DMZ minefield of perjury traps. Giuliani’s reference to Martha Stewart far underplays the risk involved, even if it does emphasize the prosecutorial desire to target the top of the food chain for process crimes.
Clinton didn’t take the Fifth because of the political implications for doing so, although in retrospect he clearly should have. Had Clinton taken the Fifth in the civil case involving Paula Jones, it might have pushed his impeachment closer to a removal. Times have changed, though, and with this special counsel probe beginning to suffer from the same political baggage as Ken Starr’s, the asserting of the Fifth might not have the same political implications — at least outside of the next election. If Trump takes the Fifth and then runs for re-election, though, expect these clips to get lots and lots of play:
This quote will be on every ad: “If you’re innocent, why’re you taking the Fifth Amendment?” That’s why Trump’s lawyers will do everything they can do head off a subpoena, and if they can keep their client from promoting it, any kind of “interview” at all. Giuliani’s trying to also warn Mueller that Trump’s legal team will not allow him unfettered access to the president. In this game, though, Mueller holds most of the cards. Precedent and politics are on his side, and if he really wants to end Trump’s political career, a subpoena might be the most effective weapon.
Update: Almost five years ago to the day, Giuliani had a very different take on taking the Fifth (video at the link):
GIULIANI: She did tremendous damage by taking the Fifth Amendment, because she raised now the reality that there is some, possibility of criminality here.
CAVUTO: Lois Lerner is taking an administrative leave, we’re told. I guess what I am asking you is, they need whistle-blowers or people in the know to come forward, do you think those deals are coming together?
CAVUTO: You do.
GIULIANI: If you have a special prosecutor, you are going to see it happen real fast. Because people are going to start getting worried. Maybe the buck is going to stop with me, and I’m going to get prosecuted. So if we can get a special prosecutor, I think this thing will —
CAVUTO: Do you think we will?
GIULIANI: I think we will. I think we are going to have to, because it is getting way too complicated. Her invocation of the Fifth Amendment took this to a different dimension, and probably she waived her Fifth Amendment right to take a pass on answering any questions. This is like somebody on trial getting up, standing up and saying, I’m innocent, I didn’t do it, and then refusing to answer any questions on cross- examination by the prosecution. The minute you get up and you start testifying, you at least open the door to the things you testified about. And by saying she’s innocent, she basically opened the door to everything.