When President Donald Trump contradicted his own attorney general and declared on Sunday that special counsel Robert Mueller “should not testify” before Congress, he caught his inner circle by surprise.
A day later, more than a dozen people from Trump’s close orbit downplayed in interviews the prospect that the president’s weekend tweet about Mueller should be taken as an official warning.
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Trump does not actually intend to assert executive privilege and block the special counsel from testifying as soon as next week, they said, before the one House committee with the power to begin impeachment proceedings against the president.
Like so many other controversies ignited by Trump’s social media feed, this one may be more bluster than live-wire legal showdown.
“He is not signaling anything other than, as an innocent man so found by Mr. Mueller, he just wants this over. He’d like to govern. That’s all he’s saying,” Joe diGenova, an informal Trump legal adviser, told POLITICO.
The Trump White House all but ignored the tweet, which raised Democratic hackles and contradicted the president’s own statement on Friday that the decision was up to Attorney General William Barr.
One White House aide argued that Trump had done nothing more than express a personal view. “Where did he say he would block [Mueller] from testifying? I know that’s what the media said — but where did he say it?” the aide told POLITICO.
“Bob Mueller should not testify,” Trump’s Sunday afternoon tweet declared. “No redos for the Dems!”
Rudy Giuliani, a Trump personal attorney, said he hadn’t spoken to his client about the subject but downplayed the idea that Trump had foreshadowed a dramatic clash with Congress. “I think I’d have to hear the words ‘We’re invoking executive privilege’ to know they’ve come to that conclusion,” Giuliani said in an interview.
Others around the president explained that Trump is still not foreclosing an option to fight back against House investigators, and that he may yet invoke an executive privilege claim to halt potential testimony by Mueller or his deputies. A similar clash could play out as House Judiciary Committee Democrats press for compliance by Tuesday with their subpoena seeking documents from former Trump White House Counsel Don McGahn, whose account of potential obstruction of justice by the president litter Mueller’s report. The Democrats’ subpoena also seeks McGahn’s testimony by May 21.
Legal experts said that a direct order from Trump to stifle Mueller’s testimony could trigger a battle over executive privilege as consequential as it is unpredictable.
“We are in uncharted waters here,” said Greg Brower, the former head of the FBI’s congressional affairs office.
Democrats so far have shown no sign of backing down in their push for what would be blockbuster testimony from Mueller, who has not spoken publicly since his May 2017 appointment as special counsel investigating Russian election interference.
House Judiciary Committee Chairman Jerrold Nadler has said he’d like to bring Mueller before his panel in mid-May. The New York Democrat is negotiating with DOJ officials about that possibility.
Stinging testimony from Mueller that accentuates his written findings — or even tactical signals that he intended his report as a call for Congress to act — could fuel calls for impeachment proceedings that Democratic leaders, fearful of political overreach, have sought to quash.
“This certainly seems like the biggest hearing for Congress since Watergate,” said Ted Kalo, a former Democratic general counsel to the House Judiciary Committee. “His ability to explain his conclusions and defend his report is the whole ballgame right now.”
While Mueller found no evidence the Trump campaign colluded with Moscow, his report cited 10 instances where the president interfered in the probe, but made no determination on whether he obstructed justice. Mueller also said that Justice Department legal opinions preclude prosecuting a sitting president.
Trump “can’t be both immune from prosecution and at the same time be able to thwart Congress from getting all the facts that might inform the House’s impeachment decision,” Brower said.
Trump waived executive privilege during Mueller’s probe and allowed the release of more than 1.4 million pages of documents and voluntary interviews from dozens of staffers.
Still, Trump legal allies say the Justice Department would have standing to prevent or limit Mueller’s testimony on executive privilege grounds.
Emmet Flood, the White House lawyer handling all Mueller matters, previewed the potential executive privilege fight ahead in a letter to Barr sent in mid-April and released publicly last week. Flood’s letter indicated that Trump doesn’t consider the release of the Mueller report a waiver of executive privilege claims for future testimony.
DiGenova said Mueller can’t testify at all without the permission of the Justice Department, to which he still reported as a paid employee as of Monday. “And the department has the authority to limit his testimony if it chooses to do so, which I do not anticipate it will,” diGenova said.
He nevertheless identified one potential area of limitation: negotiations between Mueller’s team and the president’s lawyers about a potential interview with Trump. (The interview wound up being conducted in writing.)
Another source familiar with the Trump legal team’s thinking added an additional caveat: Even if Mueller was no longer a government employee the 74-year old former FBI director could face a penalty if he defied a DOJ order.
“He could lose his bar license because he’s disobeying the instruction of a former client. Or the White House could get a court order stopping him from testifying if he refuses to follow the president’s instruction,” said the source familiar with Trump legal team thinking.
Democrats were much more inclined than the president’s allies to take Trump’s Mueller tweet seriously.
“The administration keeps sinking lower and lower. And I imagine they really will try and stop Mueller from testifying,” Maryland Democratic Rep. Jamie Raskin, a member of the Judiciary Committee, said in an interview.
Former Obama Justice Department spokesman Matt Miller called it “ridiculous” for Trump to argue that Mueller should opt out of testifying to Congress. He added that the Justice Department can’t stop Mueller from speaking out about most parts of his work once he’s a private citizen.
“I know of no instance where the department has been able to affirmatively restrain anyone from executing their First Amendment rights, especially if they were responding to a lawful subpoena,” Miller said.
Miller cited the Trump administration’s early 2017 efforts to prevent former acting Attorney General Sally Yates from giving congressional testimony about ties between the Trump presidential campaign and Russia.
“She ignored them and they did nothing, either preemptively or after her testimony, because there was nothing they could do,” Miller said.
Mueller’s testimony could inflict damage not only on Trump but Barr as well. People close to Barr have expressed concern about how Mueller might characterize a conversation the two men had about Barr’s March 24 four-page memo summarizing the special counsel’s findings.
Barr addressed the subject during his testimony last Wednesday before the panel.
“I said, ‘Bob, what’s with the letter? Why don’t you just pick up the phone and call me if there’s an issue?'” Barr said.
Many Democrats argued that Barr lied to Congress when he told a House panel he was unaware of complaints from Mueller’s team about how he had rolled out the report, even though the special counsel had sent a letter complaining to the attorney general that he “did not fully capture the context, nature and substance” of their Russia investigation.
Any daylight between Barr’s account and the one Mueller offers if he testifies would fuel Democratic demands for his resignation.
In the meantime, Trump is trying to turn the spotlight back on Democrats, saying they are more interested in digging up dirt than in legislating, and that it is they who should be investigated.
The Trump campaign has texted supporters urging them to sign a petition arguing that it is “TIME TO INVESTIGATE THE INVESTIGATORS.” Such petitions are typically used to collect the contact information of supporters and used later for fundraising.
A source to the White House said Trump has little room to maneuver, beyond the politics of the moment, in forcing a legal showdown over Mueller’s testimony. “How do you block the guy who supposedly exonerated you?” the person said.
DiGenova said he expected Trump or his White House counsel, Pat Cipollone, will be speaking with Barr about Mueller’s testimony “just to make sure that everybody is on the same page.”
But he added that the tweet itself was no change in administration policy. “No big deal,” he said. “The president tweets all the time. I’d assume now after three years people would be used to it.”
Andrew Desiderio, Andrew Restuccia and Heather Caygle contributed to this report.