Robert F. Jakubowicz: Legal fog swirls around Mueller probe

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PITTSFIELD — Anyone paying attention to what President Donald Trump has been saying since he ran for office knows that he is a liar. But that is not a crime because it was not said under oath or to federal investigators. But Robert Mueller may change this by interviewing Trump under the penalty of perjury.

A recent New York Times story that reported this also reported that Trump's lawyers are concerned and are advising him not to submit to the interview lest he find himself charged with the crime of lying to federal investigators. Trump supporters, from Chris Christie to Rush Limbaugh, have picked this up as a clarion call to excuse Trump from answering questions under oath because of his propensity to lie.

Ridiculous defense

Newt Gingrich has portrayed such an interview as unmitigated trickery by hard-bitten lawyers, making them the bad guys, bent on browbeating Trump into telling a lie. Appearing on "Fox and Friends," Gingrich said "The idea of putting Trump in a room with five or six hardened, very clever lawyers, all of whom are trying to trick him and trap him., would be a very, very bad idea."

Of course there is no such ridiculous legal defense to shield a confirmed liar from having to answer questions subject to perjury in an interview by federal investigators or a grand jury. The only instance where some special care is taken in our legal system with witnesses in such a setting involves young children and others with issues of cognition to try to get them to understand the concept and solemnity of answering truthfully.

It is indeed a sad commentary on the president to have his supporters put him in this class of individuals when it involves answering questions under oath. I wonder if evangelical leaders would give Trump a "mulligan" for lying under oath in view of the 9th Commandment: "Thou shall not bear false witness against thy neighbor," which I understand to mean making statements under oath in a legal proceeding.

The legal fact of the matter is that if Trump refuses to be interviewed by Mueller he can be subpoenaed to testify before a grand jury. The Times story states that Trump's lawyers and White House aides believe that it is possible that in such a situation, Mueller might not only be unwilling to subpoena Trump and end the investigation because it would set up a constitutional showdown that Mueller may want to avoid.

I frankly doubt Mueller would do this. He has come too far in this investigation to end it because of such a potential showdown.

All the distraction to date has clouded the purpose of Mueller's investigation. That main objective is to find all the evidence that relates to any federal crime (obstruction of justice, money laundering and perjury) that may have bee committed during Russian interference with the last presidential election.

This is a criminal investigation; at the end of which the collected evidence will be assessed to determine if it amounts to a probable cause that any of such crimes may have occurred. This is not an investigation to determine if any federal government agency such as the FBI engaged in any politically motivated action or whether the president or any members of his campaign and administration staff were involved in non-criminal activities with Russia. Nor is Mueller charged with producing a sort of 9/11 type report about Russian involvement in the presidential election.

The big question of what happens at the end of the investigation is unclear. Mueller;s investigation is subject to Department of Justice regulations requiring him to report to the attorney general, but since Jeff Sessions has recused himself Mueller would report to Acting Attorney General Rod Rosenstein — if Trump does not replace him — to decide what to do with the results of the investigation. If Trump replaces Rosenstein with one of his cronies would mean no action. Meanwhile, there is an opinion by the Justice Department Office of Legal Counsel that a sitting president cannot be indicted or tried for a crime. These opinions are normally followed by attorneys general.

Confusing interpretations

So what will happen if there is sufficient evidence that Trump committed a crime? Would he be indicted? Or if the conclusion is that the evidence is insufficient to indict him, would that evidence be made public or even sent to Congress?

To add to the confusion, legal scholars like Alan Dershowitz have asserted that Trump is immune from prosecution in tis matter because he is in effect the chief law enforcement officer in the nation and can pardon anyone. Dershowitz also has expressed concern about Mueller going after Trump because he believes that such a probe would end in a "whimper." A further question is whether Congress will be able to access Mueller's report for the purpose of impeaching Trump.     It is likely that the Supreme Court will have to be called upon to clear the legal procedural fog that is settling over this investigation/

Robert F. Jakubowicz is a regular Eagle contributor

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