exp Will Trump testify in Mueller probe?_00002001.jpg
exp Will Trump testify in Mueller probe?_00002001.jpg
Now playing
00:54
Will Trump testify in Mueller probe?
WASHINGTON D.C - SEPTEMBER 27: Judge Brett Kavanaugh testifies to the Senate Judiciary Committee during his Supreme Court confirmation hearing in the Dirksen Senate Office Building on Capitol Hill September 27, 2018 in Washington, DC. Kavanaugh was called back to testify about claims by Christine Blasey Ford, who has accused him of sexually assaulting her during a party in 1982 when they were high school students in suburban Maryland.  (Photo by Jim Bourg-Pool/Getty Images)
PHOTO: Pool/Getty Images
WASHINGTON D.C - SEPTEMBER 27: Judge Brett Kavanaugh testifies to the Senate Judiciary Committee during his Supreme Court confirmation hearing in the Dirksen Senate Office Building on Capitol Hill September 27, 2018 in Washington, DC. Kavanaugh was called back to testify about claims by Christine Blasey Ford, who has accused him of sexually assaulting her during a party in 1982 when they were high school students in suburban Maryland. (Photo by Jim Bourg-Pool/Getty Images)
Now playing
02:34
Was Kavanaugh picked to block Mueller probe?
PHOTO: Raskin & Raskin
Now playing
02:45
Trump lawyers quietly driving talks with Mueller
Rod Rosenstein, deputy attorney general, listens during a Senate Judiciary Committee confirmation hearing for Brett Kavanaugh, U.S. Supreme Court associate justice nominee for U.S. President Donald Trump, not pictured, in Washington, D.C., U.S., on Tuesday, Sept. 4, 2018. If confirmed, Kavanaugh would fortify the high court's conservative majority, and spotlight the rightward march of the federal judiciary under Trump and the GOP-controlled Senate. Photographer: Andrew Harrer/Bloomberg via Getty Images
PHOTO: Bloomberg/Bloomberg/Bloomberg via Getty Images
Rod Rosenstein, deputy attorney general, listens during a Senate Judiciary Committee confirmation hearing for Brett Kavanaugh, U.S. Supreme Court associate justice nominee for U.S. President Donald Trump, not pictured, in Washington, D.C., U.S., on Tuesday, Sept. 4, 2018. If confirmed, Kavanaugh would fortify the high court's conservative majority, and spotlight the rightward march of the federal judiciary under Trump and the GOP-controlled Senate. Photographer: Andrew Harrer/Bloomberg via Getty Images
Now playing
01:02
The man who oversees Mueller's investigation
Michael Cohen, President Donald Trumps personal lawyer walks down Park Avenue in New York June 15, 2018 after leaving his hotel. - President Donald Trump's personal attorney Michael Cohen has indicated that he is willing to cooperate with federal investigators to alleviate the pressure on himself and his family. (Photo by TIMOTHY A. CLARY / AFP)        (Photo credit should read TIMOTHY A. CLARY/AFP/Getty Images)
PHOTO: TIMOTHY A. CLARY/AFP/Getty Images
Michael Cohen, President Donald Trumps personal lawyer walks down Park Avenue in New York June 15, 2018 after leaving his hotel. - President Donald Trump's personal attorney Michael Cohen has indicated that he is willing to cooperate with federal investigators to alleviate the pressure on himself and his family. (Photo by TIMOTHY A. CLARY / AFP) (Photo credit should read TIMOTHY A. CLARY/AFP/Getty Images)
Now playing
02:06
ABC: Cohen has done interviews with Mueller
U.S. Deputy Attorney General Rod Rosenstein delivers remarks on "Justice Department Views on Corporate Accountability" during the The Annual Conference for Compliance and Risk Professionals at the Mayflower Hotel May 21, 2018 in Washington, DC. (Chip Somodevilla/Getty Images)
PHOTO: Chip Somodevilla/Getty Images
U.S. Deputy Attorney General Rod Rosenstein delivers remarks on "Justice Department Views on Corporate Accountability" during the The Annual Conference for Compliance and Risk Professionals at the Mayflower Hotel May 21, 2018 in Washington, DC. (Chip Somodevilla/Getty Images)
Now playing
05:41
Rosenstein: 12 Russians charged with hacking
PHOTO: CNN
Now playing
00:48
Trump: I believe Manafort will tell the truth at plea deal
Trump interview with NBC's Lester Holt. May 11 2017
PHOTO: NBC
Trump interview with NBC's Lester Holt. May 11 2017
Now playing
01:12
Sekulow: NBC edited Trump interview on Comey
PHOTO: CNN
Now playing
02:04
Starr: Mueller is getting closer to the truth
PHOTO: NBC
Now playing
01:30
Giuliani: Truth isn't truth
NEW YORK, NY - NOVEMBER 15: Don McGahn, general counsel for the Trump transition team, gets into an elevator in the lobby at Trump Tower, November 15, 2016 in New York City. President-elect Donald Trump is in the process of choosing his presidential cabinet as he transitions from a candidate to the president-elect. (Photo by Drew Angerer/Getty Images)
PHOTO: Drew Angerer/Getty Images North America/Getty Images
NEW YORK, NY - NOVEMBER 15: Don McGahn, general counsel for the Trump transition team, gets into an elevator in the lobby at Trump Tower, November 15, 2016 in New York City. President-elect Donald Trump is in the process of choosing his presidential cabinet as he transitions from a candidate to the president-elect. (Photo by Drew Angerer/Getty Images)
Now playing
03:27
Trump attacks NYT report in morning tweet
NEW YORK, NY - JUNE 9: Don McGahn, lawyer for Donald Trump and his campaign, leaves the Four Seasons Hotel after a meeting with Trump and Republican donors, June 9, 2016 in New York City.
PHOTO: Drew Angerer/Getty Images
NEW YORK, NY - JUNE 9: Don McGahn, lawyer for Donald Trump and his campaign, leaves the Four Seasons Hotel after a meeting with Trump and Republican donors, June 9, 2016 in New York City.
Now playing
02:27
NYT: WH counsel cooperating with Mueller probe
WASHINGTON, DC - JUNE 21:  Special counsel Robert Mueller (2nd L) leaves after a closed meeting with members of the Senate Judiciary Committee June 21, 2017 at the Capitol in Washington, DC. The committee meets with Mueller to discuss the firing of former FBI Director James Comey.  (Photo by Alex Wong/Getty Images)
PHOTO: Alex Wong/Getty Images
WASHINGTON, DC - JUNE 21: Special counsel Robert Mueller (2nd L) leaves after a closed meeting with members of the Senate Judiciary Committee June 21, 2017 at the Capitol in Washington, DC. The committee meets with Mueller to discuss the firing of former FBI Director James Comey. (Photo by Alex Wong/Getty Images)
Now playing
02:07
The Mueller investigation: Who could be next?
Now playing
02:20
Davis describes facing Mueller grand jury
PHOTO: CNN
Now playing
01:36
Analyst: Giuliani doing great harm to Trump
PHOTO: CNN
Now playing
02:00
Roger Stone: I'll never testify against Trump

Story highlights

Trump's legal team may not be able to avoid having him give testimony

They may try to delay or limit how the President speaks in the Mueller case

(CNN) —  

If special counsel Robert Mueller wants to talk to the President, there’s not much Donald Trump’s team can do to stop him, if history is any guide. Past presidents’ legal teams have always lost when they tried to avoid testifying or turning over documents in criminal investigations.

The same is likely true for Trump. The President’s lawyers are having ongoing preliminary discussions about an interview with Mueller’s team, according to two sources familiar with the matter. While there has not been a formal request for the President to be interviewed, there have been talks that have included setting boundaries, the sources said. 

“At the end of the day, I believe the courts would authorize Mueller to require by subpoena the president’s testimony,” said Robert Bennett, the lawyer who represented then-President Bill Clinton in his attempt to avoid a lawsuit from Paula Jones.

Clinton lost his fight at the Supreme Court in 1997. “No man is above the law,” Bennett added, paraphrasing a key part of the Supreme Court’s unanimous decision, which said the President wasn’t immune from civil litigation.

While Trump’s legal team may not be able to avoid having him give testimony, they may try to delay or limit how the President speaks in the Mueller case, according to lawyers who’ve followed this situation and others like it.

Trump could plead the Fifth Amendment right to avoid self-incrimination – though that carries its own political risk of giving the impression, rightly or wrongly, that the President has something to hide. A more typical route for the White House to withhold information would be through claiming executive privilege, a special privilege of the President that allows him to keep certain documents and testimony about national security and policy deliberations secret.

But even historical claims of executive privilege were fraught once a special prosecutor and grand jury got involved. The Clinton administration offers a clear and unfavorable road map for Trump’s team to follow.

Clinton spoke to independent counsels Robert Fiske and Ken Starr a few times during his first term in office. Those weren’t contentious interviews, and Clinton spoke voluntarily. But in 1998, once the matter of Monica Lewinsky’s interactions with the President became part of Starr’s investigation, Clinton’s lawyers ran a more aggressive defense.

In the summer of 1998, Starr wanted Clinton to testify before a grand jury and he issued a subpoena on July 17, according to records from the Starr investigation. Clinton’s personal attorney David Kendall tried to buy more than a week before he’d have to respond. In the last week of July, Kendall told Starr’s team the President would be willing to testify.

Among Kendall’s conditions: The President shouldn’t be under a subpoena and he should testify from the White House with a time limit on the proceedings. Yet the two sides still couldn’t agree on a date for Clinton’s testimony, so they took their disagreement in late July before the chief judge in federal court in Washington. Before the judge could rule, Clinton’s team agreed to have him testify on August 17, with a four-hour limit on the interview from the White House.

“There’s no question that they could compel him to testify, unless he took the Fifth. The negotiation was all about the respect for the office,” according to an attorney involved with the Clinton-Lewinsky investigation. 

Previous court precedents worked against the Clinton team as well. There was US v. Nixon, another unanimous Supreme Court decision that ordered the White House to turn over the Watergate audiotapes after Nixon’s lawyers claimed they should fall under executive privilege. Their claims for privilege weren’t enough to overcome the needs of a criminal investigation, the court found.

There’s also the case related to the investigation of Mike Espy, Clinton’s first agriculture secretary, who resigned in 1994 amid an ethics scandal and independent investigation involving gifts. (A jury acquitted him in 1998.) His case attempted to use executive privilege to rebuff an independent criminal investigator’s request for documents. The case reached a federal appellate panel of judges in 1997. The court disagreed with a lower-level judge’s ruling that the White House could dodge an independent investigation’s request.

The Espy decision also laid out a legal test that lawyers on both sides could use when a president faces an inquiry. A special counsel that subpoenas the president must seek evidence that’s “important to the ongoing grand jury investigation and [must demonstrate] why this evidence is not available from another source.”

The extent of Mueller’s investigation or what he may want to ask of Trump is unknown at this point. An investigation focused on collusion with Russians during the presidential campaign may need Trump simply to serve as a witness – a far more common perch from which past presidents have testified. However, the investigation could be focused on a possible obstruction of justice case related to Trump’s decision to fire FBI Director James Comey. In that scenario, Trump could be a subject in the investigation or even its target.

If Trump is to testify, his lawyers and Mueller’s prosecutors have a few options for how to tailor it. The lowest-stakes option would be for him to respond to written questions, called interrogatories. Trump’s responses would be vetted by his legal team before they’re sent to Mueller. Trump could voluntarily sit for an interview with Mueller’s team – and his lawyers could be present. That interview could either be under oath or not sworn in. Both approaches carry the same penalty if the person speaking to the authorities lies.

Trump could voluntarily agree to testify before the grand jury. If his team resisted, the prosecutors could compel the President to testify by using a subpoena, though it’s likely Trump’s lawyers would want to avoid that in the same way Clinton did.  A subpoenaed appearance before the grand jury means Trump would walk in alone, to face just the jurors, the prosecutors and the judge. He would speak under oath.

In recent days, some of Trump’s friends and advisers warned him he shouldn’t talk to Mueller. Trump said, “We’ll see what happens,” when asked last week at a news conference about a possible interview with the special counsel.

CNN’s Gloria Borger and Evan Perez contributed to this story.