Donald Trump insists he is willing — eager, even — to sit down for a tough interview with Robert Mueller. His lawyers have other ideas, and hope to strictly limit any questioning of the president under oath or prevent it from happening altogether. Whether they can pull this off is a legal and constitutional question for which the precedents do not look good.
As they consider the options, they and their boss would do well to learn from Bill Clinton, who was asked to testify on four separate occasions while under investigation during his presidency.
On three of those occasions, Clinton and his lawyers readily agreed to the requests, without the issuance of a subpoena. It was only when independent counsel Kenneth Starr sought Clinton’s testimony again, more than three years later, that his defense attorneys strenuously objected. They managed to stall for almost six months before Starr finally sent over a subpoena, and the battle over that demand ended up before a federal judge in Washington in July 1998.
Why was Clinton initially so willing to testify, and then so hesitant? With hindsight, the answer seems very simple: On those first three occasions, the investigator was focused on the bogus Whitewater nonscandal — a backwoods Arkansas real estate project that failed, leaving Bill and Hillary Clinton with a $45,000 net loss. They committed no crime, and they knew it.
The opposite was true regarding the subject of the fourth request: Monica Lewinsky. However he might try to parse his testimony, Bill Clinton knew he would stand credibly accused of lying about the relationship in a previous deposition. He also knew that his grand jury appearance would force him to publicly disclose his “inappropriate relationship” with “that woman, Miss Lewinsky” — as he did hours later in a televised address.
In other words: Unlike Whitewater, he knew he was guilty.
Under similar circumstances, a typical defendant might assert their Fifth Amendment right not to answer incriminating questions. But Clinton and his advisers agreed that taking the Fifth would have meant his political doom. And so they fought the subpoena — which leads us into that federal courtroom in the summer of 1998.
The recently unsealed transcript of the oral arguments in that case reveals the frustration felt by the Office of Independent Counsel (OIC) over White House stalling. It also provides a preview of many of the issues that may arise if and when Mueller subpoenas Trump.
“It was exactly six months ago today that we invited the President to appear the first time before the grand jury,” deputy independent counsel Robert Bittman complained. “Six months ago today.”
Unlike the White House’s previously cooperative approach, Bittman continued, “the president had refused six invitations to testify. They were, frankly, in my words, just stringing us along, and the grand jury. The president publicly stated that he was prepared to cooperate with the investigation and give information sooner rather than later, more rather than less, and yet he refused — or declined, rather, six consecutive invitations to testify.”
Indeed, Clinton first received a request from the OIC within a week of the Drudge Report breaking the Lewinsky story that January. When testifying in a previous civil lawsuit brought by Paula Jones, Clinton had fallen into a perjury trap that Jones’ lawyers had set up in connivance with Starr’s prosecutors, who jumped on the Lewinsky news as soon as it went public. (The New York Times reported salient aspects of that remarkable story in January 1999. Gene Lyons and I went into considerably greater detail about the covert dealings between the OIC and the Jones attorneys in The Hunting of the President, published in 2000.)
In response to those six invitations to testify, Clinton’s lawyers raised issues of varying salience, ranging from the president’s extremely busy schedule to the potential constitutional issues surrounding a subpoena issued to a sitting president — and above all, the bad faith demonstrated by Starr’s rampant and illegal leaking of grand jury material. They even called a press conference in February to denounce the leaks and filed litigation against Starr.
But sooner or later, they knew Clinton would have to testify, in accordance with the landmark precedent established by the Supreme Court in United States v. Nixon. His lawyers had acknowledged as much with his earlier testimony, as well as his appearances at two criminal trials under oath, and his generally cooperative attitude toward Starr’s subpoenas for documents and other materials.
Soon after the July hearing, the Clinton team negotiated terms for the president’s testimony — four hours, on a single day, videotaped at the White House, concerning the matter of Monica Lewinsky. One day earlier, Lewinsky had signed an immunity agreement requiring her to testify about her relationship with Clinton and hand over her semen-stained dress to the FBI.
No matter how much Trump's lawyers bluster, the odds are that if Mueller issues a subpoena, he probably will have to testify. They can negotiate around the edges, as Clinton’s team did, but any deal is likely to include answering direct questions under oath. That doesn’t mean he and his lawyers won’t contest a subpoena all the way to the Supreme Court, perhaps counting on the loyalty of his appointee Neil Gorsuch and the increasing lawlessness of the Republican Party.
Assuming the court rules against him, can Trump do what Clinton was so certain he could not get away with: take the Fifth? While ardent Trumpists have shown their willingness to accept even his most craven acts, most Americans are sure to see it as an admission of guilt even more damning than his attempts to avoid testifying.
But this president has told so many lies already — often in civil litigation, and often under oath — that he may just believe he can get away with it one more time.
As Bill Clinton can tell him, that would be a very big mistake.
Joe Conason is editor-in-chief of National Memo, and the coauthor of The Hunting of the President: The Ten-Year Campaign to Destroy Bill and Hillary Clinton.