Earl Ofari Hutchinson
“I’m looking forward to it.” President Trump in January 2018 said that with almost boyish sounding enthusiasm when asked whether he would submit to testimony by Special Counsel Robert Mueller in the Russia probe. But Trump being Trump, he couldn’t stop there with his loud no-fear of testifying boast. He took yet another big swipe at his former presidential rival Hillary Clinton and claimed that she didn’t testify under oath, but that he would. It was hyperbole to the nth degree. But Trump gave the impression that there would be no need for a grand jury subpoena to force him to testify about what he knew, when did he know it, and more to the point, did he actually collude with the Russians in their blatant tampering with the 2016 presidential election.
Trump’s seeming effervescent confidence that he would talk voluntarily sans subpoena was just that, words. Trump’s testimony would be fraught with mountainous legal perils. His attorney knew that full well, and so did Mueller. And weeks later there was still no date set for him to testify, or timetable for setting one. The prospect of him testifying set off a mad legal scramble behind the scenes by he, and his attorneys to duck, dodge, and delay him giving any testimony.
In the months before Trump public boast about testifying, Mueller laid the groundwork for what, if any case, could be made against Trump for collusion by pecking away around the edges. He indicted several key Trump campaign and administration associates. He indicted 13 Russian nationals, and in the process blew open the details of how Russia pulled off its elaborate, and wide-ranging presidential election scam. He then followed that up by wringing a guilty plea to lying to investigators from a top-notch New York attorney about his work for a Ukrainian firm knee deep in the election scam. There almost certainly would be more plea deals from, and indictments of, those involved in some way in the scam. However, these maneuvers were just the legal and public warm-up act to the main event. That is getting Trump to talk.
The Russia election probe always had one publicly stated official purpose and one privately unstated purpose. The official purpose was to determine if, and how, Russia meddled in the 2016 election. The FBI, CIA, and NSA in separate reports in January 2017 firmly established that it had. Then President Obama followed that up by ordering an investigation into the extent of Russian election meddling. The indictment of the 13 Russian nationals a year later simply fleshed out the details of the meddling. Even Trump in between lambasting the investigation as a “hoax’ and shouting “no collusion,” “no collusion,” was careful to add that he had never said that the Russians “or someone” hadn’t put their dirty fingers in the 2016 presidential election. So, there was really little left to say about that part of the probe.
This left the unstated purpose for the probe which was to determine if Trump, or someone operating at his behest knowingly or unknowingly, had their hands in the Russian scheme. This was the thorny issue that hung over the probe from the start. It was clearly established that the Russians set up their elaborate election fraud campaign to wreck Hillary Clinton’s campaign. It did a pretty masterful job at it by spreading malicious gossip, lies, and hit pieces all over the public and media landscape about Clinton. The aim was to ensure that Trump got in the Oval Office. The Russians saw him as the best bet for a US “hands off” benign treatment policy toward them. There is clear evidence that just enough damage was done to Clinton especially with Black voters in helping to damp down their turnout, and possibly hardening the attitude of some fence sitting white, blue collar voters in several key swing states, to help seal the White House deal for Trump.
However, to say that Trump benefited from the meddling is one thing. To say that he directed, colluded, or in some way conspired with the scam, is another. This would take a smoking gun document, tape, or iron-clad testimony from someone in the Trump circle to point the finger directly at Trump. In the many months that Mueller and other investigators dug into the Russian tampering, nothing close to that type of firm evidence had surfaced.
This left Trump. And this is where the peril lay for the President. If he did voluntarily testify, what would Mueller ask him? He could start by asking why he fired former FBI director James Comey? The intent here would be to determine if the firing had anything to do with Comey’s well-known stance that the FBI would continue digging into the Russian election scam.
He could ask whether he knew that his first national security advisor Michael Flynn had lied to the FBI about having any contacts with the Russians. He could follow that up by asking whether anyone on Trump’s election team, and that included family members, had any contacts with the Russians prior to the election and discussed the election with them. He could ask whether Trump at any point made it clear to his election team that contacts with the Russians were strictly off limits. And he could ask what, if anything, he knew about the avalanche of damaging leaks about Clinton’s emails.
Trump could of course, like any other citizen called to give testimony invoke the Fifth Amendment shield against self-incrimination. But that would not be not likely for two reasons. One, other presidents have testified under oath when summoned by special prosecutor or independent counsels. Gerald Ford testified in a case involving a Charles Manson follower. Reagan tuned over information to Lawrence Walsh during the Iran-Contra probe. Clinton testified three times to Kenneth Starr. And George W. Bush testified in respect to Valerie Plame.
For Trump to take the Fifth Amendment would ignite a legal and political firestorm that would badly tarnish him, his administration, and its credibility. Two, he could simply stick to his well-worn script, and that’s that he was not involved with the Russians and knew nothing about what they were up to. He would punctuate that by simply repeating again his oft-stated blast at Clinton that she lost the election not because of anything the Russians did, but because she was a lousy candidate.
The burden would then be on Mueller to try to pick apart Trump’s denials and nail him for lying or obstruction. This would be a steep legal hill to climb for Mueller. This is why Trump will remain Mueller and the Russia probe’s major roadblock.
Earl Ofari Hutchinson is an author and political analyst. His latest book is, Fifty Years Later: Why the Murder of Dr. King Still Hurts (Middle Passage Press) will be released in August. He is a weekly co-host of the Al Sharpton Show on Radio One. He is the host of the weekly Hutchinson Report on KPFK 90.7 FM Los Angeles and the Pacifica Network.