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

  • 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 investigation, but experts say it still gives the White House negotiating power as Trump’s lawyers seek to limit the scope of questioning should the president sit down for an interview with the special counsel Robert Mueller.

President Donald Trump’s lawyers are using a 1994 investigation by an independent counsel into a Clinton administration official as a roadmap to limit the scope of questioning should Trump be interviewed by the special counsel Robert Mueller, Business Insider has learned.

The strategy, which was first reported by USA Today, is one of several options Trump’s personal defence lawyers, John Dowd and Jay Sekulow, are examining as they prepare for an interview.

Others include providing written responses to questions and submitting an affidavit saying Trump did nothing wrong to avoid having Trump agree to a sit-down with Mueller, who’s investigating Russia’s interference in the 2016 US election, including whether Trump’s campaign colluded with Moscow to tilt the race in his favour.

Dowd and Sekulow did not return requests for comment.

Trump’s team is now leaning on a Clinton-era investigation into Mike Espy, who was the agriculture secretary from 1993 to 1994. The independent counsel at the time, Donald Smaltz, charged Espy on 30 corruption counts, accusing him of improperly accepting gifts related to travel and accommodation from businesses and lobbyists.

The Clinton administration was at odds with the independent counsel over the scope and application of executive privilege. An appellate court ruled in favour of the White House, saying executive privilege applied not only to documents but also to presidential communications and testimony. Espy was ultimately acquitted on all counts.

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 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 advisers working for him,” Ohlin said.

Both Sklansky and Ohlin said, however, that the executive-privilege precedents established by the Espy case could ultimately hurt Trump’s defence more than it could help.

“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 was “qualified, not absolute,” and could 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 respond strongly 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, is likely to spearhead the effort – and experts say he is one of the few experts in criminal law equipped to handle such a case.

Trump’s ‘greatest risk’

Unlike President Bill Clinton in the Espy case, moreover, Trump could face criminal liability in the Russia investigation.

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

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

“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.”

He added: “That is a prosecutor’s dream interview.”

Ronald Klain, who served as Vice President Al Gore’s top aide in the Clinton White House, said that “nothing about the Espy 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.

Executive privilege also would not apply to any communications between Trump and his advisers during the campaign, which is a subject of the investigation.

As such, “it’s hard to see how Espy insulates Trump’s campaign and pre-presidency from scrutiny,” Klain said, “and that’s where there’s risk on conspiracy with Russia and its agents.”

Trump comeyGettyTrump with James Comey.

And Klain said that whereas the Espy probe “was from a (largely) pre-email era,” Trump’s communications with his campaign staff, transition team, and White House advisers were “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?” he said.

Sklansky said there might be “political risk” in the White House’s comparing the Russia investigation to the Espy case.

“The allegations in the Espy matter are such small potatoes compared to the allegations in the Russia probe,” he said.

“The allegations against Espy were that he accepted gifts – sports tickets, lodging, and travel – from agribusiness, the industry his department regulated,” Sklansky said. “Even the amount of those gifts were dwarfed by the massive conflicts of interest presented by the Trump family’s business interests, and the case did present any of the foreign espionage and election-integrity issues being addressed in the Russia probe.”

At the very least, 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 Clinton, said the strategy was “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 emphasised that he did not advise Clinton on legal issues related to the grand-jury subpoena he was subject 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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