Trump Tower admission may mean looming court battle with Mueller

In a letter to Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE, the Trump legal team reportedly admits that President TrumpDonald John TrumpDem lawmaker says Electoral College was 'conceived' as way to perpetuate slavery Stanley Cup champion Washington Capitals to visit White House on Monday Transportation Dept requests formal audit of Boeing 737 Max certification MORE did indeed dictate a public statement issued by his son, Donald Trump Jr.Donald (Don) John TrumpThe Hill's Morning Report - Dems contemplate big election and court reforms Conservatives face a tough fight as Big Tech's censorship expands GOP lawmaker defends Chelsea Clinton after confrontation over New Zealand attacks MORE, that is at the center of the special counsel’s obstruction inquiry. Trump Jr.’s statement has been widely denounced as hiding the real purpose of his 2016 meeting with Russians in Trump Tower.

In the confidential letter to Mueller, published by The New York Times, the Trump team wrote, “You have received all of the notes, communications and testimony indicating that the president dictated a short but accurate response to the New York Times article on behalf of his son, Donald Trump, Jr.” The admission that Trump dictated the statement directly contradicts multiple yearlong denials that neither the president nor his lawyers previously corrected.

Trump attorney Rudy Giuliani shrugged off those denials by fellow counsel Jay Sekulow. Yet, this new account may reflect more than the continuing struggle of the White House for a coherent narrative. It may reflect a critical move in anticipation of a fight over a presidential subpoena.

Giuliani dismisses Sekulow’s misstatements as simply “misinformed” and compared it to his own contradictory remark on Fox News about cash payments by Trump to porn star Stormy Daniels. This, however, is not just a matter of a single bad interview, as in Giuliani’s case, but a position maintained for more than a year.

On July 12, 2017, Sekulow expressly denied that the president was “involved in that” statement issued by his son. On July 16, 2017, he again stated, “The president was not — did not — draft the response. The response came from Donald Trump Jr. and, I’m sure, in consultation with his lawyer.” He added, “Let me say this, but I do want to be clear, that the president was not involved in the drafting of the statement and did not issue the statement. It came from Donald Trump Jr.”

White House press secretary Sarah Huckabee Sanders said on Aug. 1, 2017, “He certainly didn’t dictate, but he, like I said, he weighed in, offered suggestions, like any father would do.” Despite Giuliani’s dismissive attitude regarding the new admission, it is a serious breach of public trust to have a false statement made in the president’s name that went uncorrected over months of national coverage and debate.

So the question is, why correct it now? The answer is likely twofold. The first reason is that this is one lie that had run its course. There was simply no way to maintain it when the statements of White House staff are likely to be made public this year in direct and irrefutable contradiction.

The second reason to correct the record is far more interesting. The Trump team may be creating a record in anticipation of a fight over a Mueller subpoena. If the president refuses to answer questions directly, the special counsel would be well within his authority to subpoena Trump to appear before a grand jury. We then would have a court battle over the right to compel a sitting president to testify.

In the letter to Mueller, the Trump legal team claimed that Trump could defy both an interview and a subpoena under his inherent powers as president. Trump likely would lose such a court fight, and the team knows it. However, there are losses and then there are losses. This would be a strategic loss to force Mueller before a court, which likely would narrow the scope and time for Trump’s questioning.

In any such litigation, the Trump team would rely heavily on a decision from the D.C. circuit court involving Clinton-era Agriculture Secretary Mike Espy, who was accused of 30 corruption counts involving gifts and travel. His case established that the court effectively serves as an umpire in such disputes, defining the legal “strike zone” for an independent or special counsel. Under this and other cases, courts often require a showing from prosecutors as to why they cannot obtain the sought-after information from other sources. That is where this recent admission comes in.

The Trump team has been pushing to allow Trump to answer most questions in writing, but Mueller has refused. With this new admission, the team has accomplished the same result. It has admitted, in contradiction of prior statements, that Trump dictated his son’s statement. That is no longer a fact in dispute that needs to be established in any interview, which further narrows the scope of any questioning.

The problem with this approach is that Mueller’s questions for Trump are not primarily about facts but about motivation. Mueller already knew the prior account was false. What he wants to know is the intent behind the statement. That is a question which can only be answered fully by one person: the president of the United States.

If the Trump team is laying the foundation for a court fight, it is taking a considerable risk. It seems to assume that the worst-case scenario is that they will get at least what former President Clinton got in his fight with an independent counsel. Clinton made extreme arguments in court, in litigation involving Trump’s new counsel, Emmet Flood. He lost and was required to appear for a deposition in the Paula Jones case.

Clinton then dropped challenges to appearing before a criminal grand jury in exchange for concessions, including having his lawyers present for a limited period of questioning outside the grand jury room. It was a sweet deal but it also reflected that Clinton had previously testified for an extended time in a civil deposition under oath.

The problem for Trump is that it would be proper for a court to limit the time and scope of the testimony, but some courts might question the propriety of ordering the other conditions. Mueller could insist that Trump appear as do other citizens before a grand jury without counsel. This is where a political calculation can come at a high legal cost. Trump is clearly correct that admissions like his drafting of the letter are not going to affect his supporters. However, it could affect one person: the judge who will have to decide any limitations on Trump’s questioning by Mueller.

With the president’s veracity in question over this and other contradictions, that “umpire” could easily set the strike zone as running from the president’s ankle to his throat. After all, a letter that was challenged as false was followed by what is now admitted to be a false account that was maintained over a year. That is not a great record to ask for a court to protect you from lines of inquiry. In other words, a president can demand a hearing but he cannot dictate the result.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.