How Trump’s legal strategy on the Russia investigation paid off
‘This is absolutely fantastic,’ Giuliani said minutes after Barr issued the findings. ‘It’s better than I expected’
Washington — When US attorney-general William Barr sent MPs a summary of the key findings in special counsel Robert Mueller’s Russia investigation, members of President Donald Trump’s legal team were gathered in an office near the US Capitol.
They soon had reason to celebrate on Sunday, perhaps helped by a pivotal strategic decision. Mueller had spent 22 months investigating whether Trump or his aides conspired with Russia during the 2016 election, interviewing 500 witnesses. The Republican president’s lawyers made sure he was not among them.
The strategy paid off, insulating Trump from the legal jeopardy presented by a sit-down interview with the special counsel’s team — an interview that Trump had said publicly he wanted to do. There was even a tentative date for the interview — January 27 2018 — though one of Trump’s lawyers told Reuters he never intended to make the president available to Mueller. And Mueller never issued a subpoena demanding testimony.
They agreed instead to have Trump provide written responses, which he did in November.
On Sunday, Trump’s lead attorneys — Jay Sekulow, Rudy Giuliani and husband-and-wife team Jane and Martin Raskin — were huddled at a conference table with their computers open, awaiting Barr’s summary. When it finally popped up online, they were jubilant.
Mueller had found no evidence of conspiracy with Russia, Barr said. The attorney-general also concluded there was insufficient evidence that Trump had committed obstruction of justice by trying to impede the inquiry — an issue the special counsel had left unresolved.
The findings provided Trump a big political victory after an investigation that had cast a long shadow over his presidency.
Giuliani threw his arm around Sekulow, Sekulow told Reuters on Tuesday. Sekulow said he told the others, “This is absolutely fantastic.” Giuliani told Reuters minutes after Barr issued the findings: “It’s better than I expected.”
The lawyers also faced the daily prospect of a subpoena from Mueller to force Trump to testify. If it came, their plan was to ask a judge to quash the subpoena, expecting the legal fight to reach the supreme court
The stakes were high. Some of the lawyers had worried that if Trump had submitted to the interview, it could expose him to claims that he lied to the FBI, or made “false statements”, in legal terms. Giuliani publicly called an interview a “perjury trap”, especially if Mueller went beyond asking Trump about collusion and strayed into other matters.
Trump is frequently called out for misstating facts or simply making things up.
For the past year, Trump’s lawyers pursued a two-pronged approach that relied on public attacks by Giuliani on Mueller’s “witch hunt” on cable TV news alongside backroom negotiations with Mueller’s team led by the Raskins, according to two sources familiar with the strategy who spoke on condition of anonymity.
A spokesperson for Mueller declined to comment for this story.
‘We weren’t going there’
When Mueller began his work in May 2017, Trump’s legal team initially decided that co-operation was the quickest way to end the probe, according to Ty Cobb, the White House lawyer who handled the inquiry for the presidency at the time. More than 20 White House staff members were made available for special counsel interviews, and the administration handed over more than 20,000 documents.
A burning question was whether Trump himself would agree to be interviewed. Despite the tentative date being set, Trump’s legal advisers were split. Attorney John Dowd, who, at the time, represented Trump personally in the inquiry, worried that an interview would be too risky.
“We’re not going to go in there and make a mistake,” said Dowd, a pugnacious ex-Marine, recalling how he pushed back against Trump being interviewed even though the president had expressed willingness.
Trump’s lawyers would not entertain questions on the issue of whether Trump had tried to obstruct justice when he fired former FBI director James Comey, then overseeing the Russia probe
Dowd said he talked to Mueller’s team “about what they had done to Flynn and Papadopoulos”. Trump’s former national security adviser, Michael Flynn, and a former Trump campaign aide, George Papadopoulos, both ended up pleading guilty to lying to the FBI after submitting to special counsel interviews. “We weren’t going there,” Dowd said in an interview.
Dowd said Mueller told him he wanted to discuss 16 areas in the interview, a scope viewed as too expansive. In agreeing to the tentative interview date, Trump’s lawyers had been seeking to draw out Mueller to find out what he already knew, Dowd said.
“We wanted to know what was really on their mind. They played it close to the vest. Our purpose was: the more meetings we had, the more we learned. That was the purpose of keeping the talking going,” Dowd said, adding that he never intended to make Trump available for an interview.
Protecting the president
After the interview was canceled, it was apparent, according to Cobb, that the process would drag on. “Once there was a decision by the president’s lawyers in January 2018 not to proceed with an interview at that time — but to keep the possibility open — it was clear this would take some time.”
The lawyers also faced the daily prospect of a subpoena from Mueller to force Trump to testify. If it came, their plan was to ask a judge to quash the subpoena, expecting the legal fight to reach the supreme court. It never came.
“We were prepared from the outset in the event of a subpoena to challenge it,” Sekulow said. “We felt confident the law was clearly on our side.”
Although not all experts agree, the legal team’s view was that a president cannot be compelled to testify unless the information could not be obtained from other sources and the circumstances were extraordinary.
By the spring of 2018, it appeared Trump had two options: either sit for an interview or be subpoenaed.
By that point, Trump’s team had been reshuffled. Dowd resigned in March. The Raskins and Giuliani came on board in April. Cobb was replaced in the White House by Emmet Flood in May. Sekulow was the only key member remaining throughout.
The new legal team pressed Mueller to show them that the investigation had reached a stage that would justify sitting down with the president, a source familiar with the negotiations said.
“Are you in a position where you have evidence of a crime?” the source said the team asked Mueller.
The team stuck to that position through the autumn of 2018 while negotiating the deal in which Trump would answer written questions only on a limited subject — potential collusion with Russia before the 2016 election — not open-ended queries that potentially could have spilled into his businesses, finances or other matters.
Mueller’s agreement to submit a list of questions was a critical moment. The special counsel never stopped asking for the interview, the source said, but when Mueller acquiesced to answers in writing, it was a game-changer.
“It went from being constantly, ‘Are they going to decide to issue a subpoena?’ to, ‘We’re doing some written questions’,” the source said.
Trump’s lawyers would not entertain questions on the issue of whether Trump had tried to obstruct justice when he fired former FBI director James Comey, then overseeing the Russia probe, and frequently assailed then attorney-general Jeff Sessions publicly for not ending the inquiry.
The legal team did not think a president could be found guilty of obstruction of justice for firing someone he had appointed in the first place to work for the administration.
“That was off the table,” and negotiations with Mueller continued on answering questions on Russia’s interference in the election, the source familiar with the matter said. “At the end of the day, the strategy worked. No interview. No grand jury subpoena.”
Trump signed his answers to Mueller on November 20 before leaving Washington to celebrate the US Thanksgiving holiday at his Mar-a-Lago resort in Florida.
“We answered every question they asked that was legitimately pre-election and focused on Russia,” Giuliani told Reuters at the time. “Nothing post-election.”
Mueller’s team had pressed during the negotiations for an opportunity to pose follow-up questions to Trump, possibly in person, Giuliani said. But ultimately the special counsel agreed to accept just the written answers with no conditions and no follow-ups, Giuliani added.
By the end of last year, Trump’s lawyers had little interaction with Mueller’s team. Asked about the team’s strategy, Sekulow said, “I guess it worked. The plane landed successfully.”