Robert Mueller is playing chess, not checkers

The special counsel’s latest round of indictments against 13 Russians and a U.S. citizen is another significant step in the investigation into Russian meddling with the 2016 election. However, these indictments may play a broader role in Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE’s game of chess with President TrumpDonald John TrumpFamily immigration detention centers could be at capacity within days: report Trump likely to meet with Putin in July: report DOJ requests military lawyers to help prosecute immigration crimes: report MORE and his lawyers. A watershed moment is fast approaching in the investigation: the president’s impending interview, under oath, with the special counsel’s office.   

Having spent most of my 22-year career as an attorney working on public corruption cases and other white-collar criminal matters, including 13 years as a federal prosecutor in Washington, I can report that no criminal defense attorney worth his salt would subject the average client to this type of examination, knowing that the full weight and power of the federal government is zeroing in on the client.

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Instead, the client would assert his Fifth Amendment rights under the Constitution not to incriminate himself and force the government to prove its case without benefit of the client’s testimony or the threat of catching the client in a perjury trap.  

 

But, the president of the United States is no average client.      

The president is in the unique position of suffering dramatic political consequences and potential impeachment should he assert his Fifth Amendment rights. Nonetheless, Trump and his lawyers may have been considering just such a move before the latest round of indictments were issued. There can be little dispute that Trump takes risks that other politicians never would consider. To testify under oath, given Trump’s countless on-record and oftentimes conflicting statements through Twitter and other media outlets, may be tantamount to walking into a perjury trap. Famous figures such as Martha Stewart have walked a similar path to find themselves in jail.   

Trump could counter the political ramifications and talk of impeachment by repeating and amplifying his mantra: The special counsel’s investigation is a “hoax” and “witch hunt.” By delegitimizing Mueller’s office, Trump could muddy the political waters, asserting that his Fifth Amendment claim centers on his refusal to participate in a sham investigation, not over any real concern that he would incriminate himself.

Trump’s endgame may be focused on the fact that he faces a much different Congress than Richard Nixon. Currently, 47 Democrats and two independents occupy the Senate, meaning 18 Republicans would have to defect from the party to reach the more than two-thirds of the Senate required (i.e., 67 senators) to remove the president from office should the House of Representatives issue Articles of Impeachment.

In contrast, 58 Senators (56 Democrats, one conservative and one independent) occupied the Senate during the Watergate era, meaning only nine Republicans had to defect from the party to remove Nixon. As history tells us, senior Republican officials informed Nixon that there were, in fact, 24 Republican Senators voicing their intent to vote against him. Nixon saw the writing on the wall and resigned.   

Not only are the numbers different today, the political discourse is far more hostile. Trump may be relying on Republican senators’ loyalty to him and their party, as well as their open hostility toward Democrats, to pursue the incredibly risky but potentially administration-saving Fifth Amendment claim. In other words, Trump’s gamble may be that 18 Republican senators will never agree with Democrats that asserting the Fifth Amendment requires removal from office. And, unlike Nixon, Trump seems to have the wherewithal and vigor to take this matter all the way to trial in the Senate.

To head off such a move in this ultimate game of chess and further tighten the noose around the president, Mueller may have issued the current round of indictments, at least in part, to prove in no uncertain terms that the Russia investigation is no “hoax” or “witch hunt,” taking away Trump’s cover should he try to delegitimize the special counsel’s office while asserting his Fifth Amendment rights.

The widespread conspiracy alleged in the indictments implicates Russian oligarchs tied to Russian President Vladimir Putin, sets out a vast network of companies, financing and domestic criminal acts, and reconfirms the intelligence community’s conclusions from more than a year ago that Russians conclusively meddled in the 2016 presidential election. Prosecutors relish any opportunity to interview the target of their investigation; taking testimony under oath is even more valued. Mueller will undoubtedly do whatever he can within the rules to force Trump to testify.  

With the evidence in the indictments now before the American people and Congress, the president’s ability to plead the Fifth Amendment while muddying the political waters by publicly attacking the special counsel’s office is greatly reduced, if not eliminated. The timing of these indictments should not be lost on the American people: just months or less from the reported testimonial showdown between the president and Mueller.

This chess game has many moving parts with historical consequences. Mueller made his move through the Russian indictments. President Trump, it is your turn.   

Seth Waxman, a former federal prosecutor and current partner in the law firm of Dickinson Wright, worked for more than 20 years on complex, white collar criminal cases.