Rudy Giuliani may have just set up a midterm election showdown.
President Donald Trump’s lawyer insisted Wednesday that his latest proposal in the long-running tussle with special counsel Robert Mueller over an interview with the President was designed to shield the investigation from the political overhang of November’s polls.
But the latest gambit will almost certainly have an effect opposite to ending the showdown over Trump’s proposed testimony quickly.
That’s because although the terms of the offer were not disclosed, it appeared to come with conditions that legal experts say will be almost impossible for the special counsel to accept.
So Mueller will be left to decide whether to carry on increasingly futile negotiations, to end his investigation without talking to the President directly or to force his testimony with a subpoena, a move that will prolong the standoff and may even reach the Supreme Court.
Those deliberations, any of which will have significant political blowback, will unfold as the midterm election campaign hits high gear and as multiple other legal challenges buffet the White House – including the current trial of Trump’s former campaign chairman Paul Manafort.
Major political risk
If Mueller does brandish a subpoena and the President’s legal team decides to fight it, they will be taking a major political risk, since it could look to some midterm voters like the President fears sitting down with the special counsel and has something to hide.
But it would also play directly into Trump’s base-stoking strategy as he tries to stave off a disaster while Democrats eye a “blue wave” in the midterms by igniting the kind of turnout among voters that incumbent presidents often fail to achieve.
Trump has spent months portraying the Mueller investigation as a politically motivated witch hunt and slamming the special counsel’s team as “13 Angry Democrats,” and a subpoena fight would allow him to portray his presidency under an existential threat.
In a phone interview Wednesday with CNN’s Dana Bash, Giuliani said Republicans could benefit from dragging the process into the midterms.
“When I first got involved, I would have told you not testifying would be the right legal strategy but then hurt politically,” Giuliani told Bash. “Now I’m thinking the continuance of the investigation would actually help because people are getting tired of it, and (the President) needs something to energize his voters because the Democrats look like they’re energized. Nothing would energize (Republicans) more than, ‘Let’s save the President.’ “
The political implications of a subpoena fight would also significantly raise the stakes for the coming confirmation process of Trump’s latest Supreme Court pick, Brett Kavanaugh, who has argued that Presidents should not be exposed to questions in criminal cases while in office.
Democrats will argue that Kavanaugh, given his nomination by Trump, who often appears keen to test the limits of his powers, should agree to recuse himself from any case on a subpoena sent to a President – a step he is unlikely to take.
Kavanaugh’s moment in the spotlight was always going to be a turning point of the midterm campaign because both parties will use it to exemplify the stakes for their faithful. Throw a subpoena duel into the middle of the hearings and it will be even more consequential.
In many ways, Mueller has the leverage at this stage of the standoff – since Trump’s legal team cannot predict his next move.
The President has insisted all along that he wants to speak to Mueller and believes he could quickly put himself in the clear. But Giuliani is doing what any good lawyer would do – protecting the President from what many of his friends and supporters believe would be a ruinous encounter with Mueller given Trump’s proclivity for misrepresentation.
But Giuliani’s framing of his latest response to Mueller’s request for an interview underlined that the President’s team is not just operating in a narrow legal context, but also sizing up a roiling political climate that could prejudice Republican voters even more strongly against the investigation.
“I hope the special counsel is as sensitive to it as we are. We do not want to run into the November elections. … This should be over with by September 1,” Giuliani said in an interview on the radio show of another member of Trump’s legal team, Jay Sekulow.
“If there’s going to be an interview, let’s have it. If there’s not going to be an interview, then let him write his report. He’s got all – honestly – he’s got all the information that he needs.”
The terms offered by the Trump team to Mueller were not disclosed.
But Giuliani told CNN that while he would be willing to consider questions on the issue of whether the President had obstructed justice – a previous stumbling point – those inquiries would have to be constrained within a narrow range to avoid any perjury trap.
“For example: ‘What did you say about Flynn?’ ‘Why did you fire Comey?’ They already know our answer,” Giuliani said, referring to former national security adviser Michael Flynn and former FBI director James Comey, whom Trump fired in May 2017.
Contrary to Giuliani’s claims, Trump’s motivations for firing Comey are far from obvious. The President has given several different reasons for the move himself, saying it was because of Comey’s handling of the Hillary Clinton probe, but later telling NBC News that it was all about the Russia investigation.
That is one reason why Mueller wants to get his investigators across the table from Trump and is also why such a face-to-face would be so perilous for the President, since he has no idea what the special counsel already knows from the testimony of witnesses about his motivations in the Comey firing.
The most obvious flaw in Giuliani’s argument is that if the President simply told the truth he would have nothing to fear from Mueller.
“The best way to avoid a perjury trap is not to commit perjury,” Elie Honig, a former federal prosecutor, told CNN’s Brooke Baldwin on Wednesday.
But the sensitivity of Trump lawyers to exposing the President in such a way, and the fact that their negotiations with Mueller are looking like a futile exercise, is pushing the special counsel toward a decision that could make the political backlash against his inquiry so far look tame by comparison.