Whitewater Counsel: Mueller Will Put Up With Pre-Conditions Because He Has Nothing To Subpoena Trump


FNC: Decisions may be imminent in the showdown between President Trump's legal team and special counsel Robert Mueller; analysis from Alan Dershowitz, Harvard law professor emeritus, and Sol Wisenberg, former deputy independent counsel in the Whitewater investigation.

LAURA INGRAHAM, FOX NEWS: Joining us now to analyze, Alan Dershowitz, author of the big bestseller, "The Case against Impeaching Trump," and Sol Wisenberg, former deputy independent counsel in the Whitewater investigation. We'll also get into the cantankerous T.S. Ellis, the federal district judge who is presiding over the Paul Manafort trial.

But let's get to this breaking news, Rudy Giuliani and this "Politico" interview. You probably haven't read it, either of you, but he seems to leave open the possibility of a very narrow set of questions, if it can be narrowed, on obstruction. Alan, I'll go to you first. What might be the wisdom in that?

ALAN DERSHOWITZ, HARVARD LAW PROFESSOR EMERITUS: I think Giuliani's tactic is to be able to say to the public, look, our president was willing to speak and Mueller turned him down. I think he's Mueller an offer that Mueller can't really accept. He's putting forth a kind of narrow window. If Mueller accepts it, then game on and we'll see some narrow questioning.

But if I were Trump's lawyer -- I'm not -- I would not under any circumstances allow him to testify, because all you need is one question in which he answers truthfully, but somebody else answers in a different way, say he says, I didn't know about the meeting at the Trump Tower involving the Russians, and Cohen says, yes, he did, then you have an opportunity to spring that perjury trap. So in the end, I don't think lawyers generally will advise a client to testify or sit down with a prosecutor. But I think this client wants to be able to say I offered to sit down and it was Mueller who turned me down. So I think that's the strategy.

INGRAHAM: Here's some of the previous conditions, Sol, placed on any potential interview that Giuliani had set out. And we'll put it up on the screen for our viewers. It can only be two to three hours long, narrow set of questions on collusion. They provide info on FBI information first, so they want that information, show proof that Trump committed a crime, show testimony is needed to end a probe, and curtail obstruction questions. So that's the one that kind of was fleshed out a little bit more tonight in Giuliani's comments to "Politico," that last bullet point. Sol, you're reaction to these latest developments? Do you agree with what Professor Dershowitz is positing there?

SOLOMON WISENBERG, PARTNER, NELSON-MULLINS: No prosecutor worth his salt is going to accept those kinds of preconditions. But there's a reason -- and I do agree with, and have long agreed with Professor Dershowitz's assertion that the president shouldn't go in and answer these questions. It's far too dangerous. But there's a reason Bob Mueller has put up with this dance for so long. And I think a lot of people don't understand it.

If he issues the subpoena to force President Trump to be interviewed by him, to go to the grand jury, for example, certainly President Trump has to accept that subpoena. You can subpoena a president. But then when President Trump invokes executive privilege, under the law, the current law in the D.C. circuit in resealed case, it is going to be very difficult and time-consuming for Bob Mueller to ask the questions he wants to ask, particularly about obstructions. And there is absolutely no guarantee that he will win.

You're talking about the heart of executive privilege here, presidential communications and presidential thought processes. And Mueller would have to show that it's very, very important evidence and that he can't get it anywhere else.

And don't forget, when Jaworski won the tapes case against Nixon, and when Cox won the earlier case, they knew their subpoenas were incredibly narrowly drawn. They knew the tapes existed. They knew there were potentially incriminatory conversations on those tapes. Mueller does not have that.

INGRAHAM: Very different.

WISENBERG: And more than anything else, Mueller does not have the right to even litigate executive privilege. The first thing President Trump is going to say is, I'm your boss. You can't even be in court. So the reason why Mueller has put up with these ridiculous preconditions is that he probably can't win if he goes to court.

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