Home / Politics / Trump’s legal team is looking at the 1994 Espy case to push back against Mueller

Trump’s legal team is looking at the 1994 Espy case to push back against Mueller


donald trump
President
Donald Trump.

Associated Press/Evan
Vucci


  • President Donald Trump’s legal team is looking at a
    1994 investigation into a Clinton administration official to
    provide the White House cover in the Russia
    investigation.
  • The case does not have the same fact pattern as the
    Russia probe, but experts say it still gives the White House
    negotiating power as Trump’s lawyers seek to limit the scope of
    questioning if Trump sits down for an interview with special
    counsel Robert Mueller.

President Donald Trump’s lawyers are using a 1994 independent
counsel investigation into a Clinton administration official as a
roadmap to limit the scope of questioning in the event that Trump
is interviewed by special counsel Robert Mueller, Business
Insider has learned.

The strategy, which was first reported by USA Today,
is among a number of options Trump lawyers John Dowd and Jay
Sekulow are examining as they prepare for Trump’s interview with
Mueller. Those include providing written responses to interview
questions and submitting an affidavit saying Trump did nothing
wrong, in order to avoid having Trump submit to a sit-down with
the special counsel.

Dowd and Sekulow did not return requests for comment.

Trump’s team is now leaning on a Clinton-era investigation into
former Agriculture Secretary Mike Espy, who served between
1993-94. The independent counsel at the time, Donald Smaltz,
charged Espy with 30 corruption counts, alleging that he
improperly accepted gifts related to travel and accommodation
from businesses and lobbyists. 

The Clinton administration was at odds with the independent
counsel over the scope of and application of executive privilege.
An appellate court ultimately ruled in favor of the White House’s
argument and said presidential privilege applied not only to
documents but also to presidential communications and testimony.
Espy was ultimately acquitted of all 30 charges. 


clinton espy
President
Bill Clinton speaks in the Rose Garden in Washington, Dec. 28,
1994, where he named outgoing Kansas Congressman Dan Glickman,
center, as his choice to replace outgoing Agriculture Secretary
Mike Espy, right. Espy was forced to resign under an ethical
cloud in October.

Greg
Gibson/AP


David Sklansky, a professor of criminal law at
Stanford Law School, said the Espy case
“may

 well provide precedent for shielding some
communications among President Trump and other White House
officials.” 

And Jens David Ohlin, a professor at Cornell Law School,
said he wasn’t surprised that Trump’s lawyers were looking
closely at the Espy case. 

“In one sense it would seem to be helpful to them, because the DC
Circuit broadened the presidential communication privilege and
upheld it not just for Bill Clinton personally but also for
White House advisors working for him,” Ohlin said. 

Both Sklansky and Ohlin noted, however, that the executive
privilege precedents established by the Espy case could
ultimately hurt more than help Trump’s defense. 

“The Espy case makes clear that executive privilege is
limited in important ways,” Sklansky said. “The most important of
these limitations is that it is only qualified privilege, which
means it can be overcome by a showing of specific need by
government investigators.”

Ohlin agreed, noting that the DC circuit court held in the
Espy case that
 the presidential communications
privilege “is qualified, not absolute, and can be overcome by an
adequate showing of need.”

“That’s clearly a balancing test that inures to the benefit
of Mueller,” Ohlin said. “And the court said that a prosecutor
can demonstrate need by showing that the requested materials
contain important evidence that is not available elsewhere. This
provides Mueller with a roadmap for a successful argument.”

Mueller’s team has the resources to mount a strong response
to Trump’s lawyers if they invoke the Espy case as precedent to
limit the scope of questioning. Michael Dreeben, a veteran
appellate lawyer on the special counsel’s team, will likely be
spearheading the effort and experts say he is one of the
few experts in criminal law who’s equipped to handle such a
case. 

Trump’s ‘greatest risk’

Unlike Clinton in the Espy investigation, moreover, Trump could
face criminal liability in the Russia probe.

Multiple reports have indicated that Mueller is building an
obstruction-of-justice case against Trump based on his decision
to fire FBI director James Comey
last May. Comey told Congress last summer that Trump had asked
him for his loyalty, and to consider dropping the FBI’s case into
former national security adviser Michael Flynn.

Executive privilege also would not apply to any communications
exchanged between Trump and his advisers during the election,
which Mueller is examining as part of his investigation into
potential collusion between the Trump campaign and Russia
throughout 2016. 

Former federal prosecutor Jeff Cramer said that the information
relevant to the investigation doesn’t deal with Trump “merely
being briefed on the criminal liability of a Cabinet member, but
rather potential proof of the crime itself.”

“The last thing in the world the White House lawyers want is a
wide ranging interview with the special counsel,” Cramer said.
“There are far too many contradictory statements out
there from Trump about why he fired Comey, if he knew Flynn lied
to the FBI, and a host of other relevant issues.”

“That is a prosecutor’s dream interview,” he added.

Ronald Klain, who served as Vice President Al Gore’s top aide in
the Clinton White House, said that “nothing about the Epsy case
insulates the President from being interviewed.”

“And given Trump’s lack of discipline and focus, that is
his greatest risk in terms of interaction with the Special
Counsel,” Klain said in an email. “Second, it’s hard to see how
Espy insulates Trump’s campaign and presidency from scrutiny, and
that’s where there’s risk on conspiracy with Russia and its
agents.”


trump comey
Getty

Additionally, Klain noted, whereas the Espy probe “was from
a (largely) pre-email era,” Trump’s communications with his
transition team and White House advisers are “probably documented
in many places that cannot be protected.”

In any case, Klain said, “
the horse may
already be out of the barn. Who knows what Mueller already has
right now as the Trump lawyers do their research?”

Sklansky noted there may actually be “political risk” in the
White House comparing the Russia probe to the Espy investigation.

“The allegations in the Espy matter are such small potatoes
compared to the allegations in the Russia probe,” he
said. 

“The allegations against Espy were that he accepted
gifts–sports tickets, lodging, and travel–from agribusiness,
the industry his department regulated. Even the amount of those
gifts were dwarfed by the massive conflicts of interest presented
by the Trump family’s business interests, and the case did
present any of the foreign espionage and election integrity
issues being addressed in the Russia probe.”

At the very least, the Espy case could put the White House
in a position to negotiate with Mueller. But it remains to be
seen whether that would benefit Trump — after the Clinton
administration received a grand jury subpoena during the Espy
case, the matter dragged on for three more years. 

Lanny Davis, a former special counsel to Bill Clinton, said
the strategy is “not going to work.”

“No matter how much huffing and puffing Trump’s lawyers do,
they cannot escape a grand jury-issued subpoena,” said Davis, who
emphasized that he did not advise Clinton on legal issues
related to the grand jury subpoena he was subjected to in the
Monica Lewinsky matter. 

“They either defy it and risk serious criminal risk, or
they take the Fifth amendment and appear before the grand jury,”
Davis added. 
“So they can fight the grand jury
subpoena and buy time, but looking at the precedents established
in the Nixon case and by Clinton’s lawyers, the chances of
success are very small.”

“Mueller holds all the cards here,” Davis said. “And the
political consequences of Trump defying a grand jury subpoena,
and taking the Fifth, would be too much for him to survive.”


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