Opposing view: Trump’s better off litigating than testifying

In my experience, subjects of criminal investigations rarely help themselves by speaking to prosecutors or testifying before a grand jury. Far more often, they hurt themselves by falling into a perjury trap carefully set by prosecutors.

When prosecutors invite a subject to talk to them, they are not trying to help the subject. They are trying to bolster their case against him. Subjects can become targets and then defedants even if they tell the truth.

They can fill gaps or make statements that are contradicted by other witnesses who the prosecutors chose to believe. That is why, in my half-century of practicing criminal law, I have never advised a client to speak to prosecutors unless the alternative is worse.

In this case, the alternative may well be a grand jury subpoena, which is worse in that the subject must appear without his lawyer and without limitations of time and subject matter. But it is better in that it can be challenged legally. A negotiated appearance cannot.

There are several grounds on which President Trump’s lawyers could challenge a subpoena. The broadest ground would be that a sitting president cannot be compelled to appear before a grand jury and answer questions. The courts are likely to reject so broad an argument, as they rejected President Clinton’s claim that he could not be required to sit for a deposition.

A somewhat narrower objection would be to answering any questions that relate to the exercise of his presidential authority under Article 2 of the Constitution. Just as members of Congress and the judiciary cannot be questioned about the exercise of their constitutional powers, so, too, a president cannot be required to explain why he fired FBI Director James Comey or national security adviser Michael Flynn.

President George H. W. Bush was not questioned about why he pardoned Caspar Weinberger and others on the eve of their trials, even though it was obvious to everyone, especially the special prosecutor, that he pardoned them for the improper purpose of shutting down the Iran-Contra investigation, which might well have pointed a finger of accusation at him.

I think that President Trump would have a good chance of prevailing on this issue.

Finally, he could challenge questions that go beyond the scope of the special counsel’s mandate. Even if he prevailed on that challenge, it would only be a Pyrrhic victory, since the same questions could be put to him by a grand jury in the Southern District of New York.

All in all, I think the president is probably better off litigating than testifying, though he might end up doing both.