The tactic being used by President Donald Trump and his team when to speaking with Special Counsel Robert Mueller’s team is becoming clear, Harvard Law professor emeritus Alan Dershowitz said Wednesday: They’ll make them an offer they can’t accept.
“The president wants to testify; his lawyers don’t want him to testify,” Dershowitz told Fox News’ “America’s Newsroom.”
“The lawyers will set up a series of conditions. To put it in terms of ‘The Godfather,’ make Mueller an offer he can’t accept.”
That would force Mueller to issue a subpoena, said Dershowitz.
“The president will be able to say ‘I wanted to testify. It was Mueller who turned me down. I wanted to tell the American people what happened,'” said Dershowitz. “Then there will be a fight over the subpoena. That fight will end up months from now as a draw.”
Trump will be able to win on some issues, said Dershowitz, such as being questioned over why he fired former FBI Director James Comey.
“He won’t be able to be questioned about other issues governed by article 2 of the Constitution but he will be able to be asked about questions involving meetings in the Trump Tower before the election, involving his son,” said Dershowitz.
“So, in the end, it will end up that either Mueller will have to say in the report the president wouldn’t do it, and therefore he should infer guilt from that, or he will have to wait until he resolves these issues in front of judges.”
And that, said Dershowitz, “seems like a clever strategy.”
Earlier on Wednesday, Trump’s attorney Rudy Giuliani told CNN Trump’s team is making a “good-faith attempt to reach an agreement” with Mueller for an interview on possible obstruction charges.
The former New York City mayor refused to say what Mueller’s counteroffer is, but told CNN that “there is an area where we could agree, if they agree,” and that Trump’s team will consider at questions about obstruction, as long as they don’t seem like “perjury traps.”
Show host Bill Hemmer noted that Dershowitz was breaking the calendar in two; pre-campaign up to the day Trump was elected president.
“Anything after that is off limits because it is protected by the Constitution under Article 2, is that what you’re saying?” Hemmer said.
“Not everything but many things,” said Dershowitz. “He can’t be asked about his motives, about why he fired Comey any more than a senator could be asked why he voted or a judge could be asked why he issued a decision. The Constitution gives breathing room for the exercise of Article 2 powers of a president.”
However, Trump could be asked about what he knew about the meeting between his oldest son, Donald Jr., and Russians at Trump Tower, said Dershowitz, although he’s sure the president’s lawyers will try hard to keep testimony about that out.
Giuliani will also likely argue that Mueller’s team must show evidence that a crime was committed, and Dershowitz said that is a “very smart thing to do.”
“As a guy who taught criminal law for 50 years, I don’t see a crime that Mueller can come up with,” said Dershowitz. “I don’t think you can obstruct justice by exercising your Article 2 powers under the Constitution and second, it is awfully hard to show the president’s testimony is needed.
“Giuliani has sprung a trap on those who would have sprung the perjury trap and it’s a smart tactic.”
However, Trump’s former attorney, Michael Cohen, has already said Trump knew about the meeting, while the president denied that.
“If Trump tells the truth as he believes it that he didn’t know about the meeting, he jumped into a perjury trap,” said Dershowitz. “There is another witness saying the opposite. That’s what Bill Clinton did. He walked into a perjury trap or his lawyer did, and I think President Trump learned the lesson of the bad representation that bill Clinton by Robert Bennett, not by his other lawyers.”
Dershowitz also commented on the ongoing trial for Paul Manafort, Trump’s former communications director. Manafort’s former deputy director and protege, Rick Gates, has testified that he committed several illegal acts with Manafort, but also admitted that he’d lied, cheated and even stole from Manafort.
“If that case hinged on only the credible testimony of Gates, the prosecution will lose,” said Dershowitz, noting that Manafort’s former accountant was given immunity over crimes of knowing filing a false tax return.
“Unless the prosecution has documents that corroborate the two live witnesses, I think there is a very weak case,” said Dershowitz. ” Juries don’t convict on the basis of the uncorroborated testimony of witnesses that has incentive to sing and compose.”
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