Trump Could ‘Get Away with’ Pleading the Fifth

Amid reports that special counsel Robert Mueller wants to question President Donald Trump about matters related to obstruction of justice, former Whitewater prosecutor Solomon Wisenberg said Friday he would counsel against submitting to such a process.

A normal citizen in a white-collar case in Trump’s position has an easy call, Wisenberg said on “The Laura Ingraham Show.” There is no advantage to testifying to a grand jury, he said.

Politicians like Trump have other considerations, obviously. Public figures generally want to avoid the appearance of guilt that invoking the Fifth Amendment right against self-incrimination would create.

And with Trump, critics would have many video clips of him as a candidate ridiculing former staffers of Democratic candidate Hillary Clinton who took the Fifth during the investigation into her handling of classified information as secretary of state.

But Wisenberg, who served on the team that investigated then-President Bill Clinton in the 1990s, said Trump could use his bully pulpit to explain to the American people that the Fifth Amendment “protects the innocent as well as the guilty.” He said the Supreme Court has recognized that the amendment protects the innocent from the “artful questions” of prosecutors.

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“I think the president can get away with this … He could probably pull it off,” he said.

Trump appears to want to speak to Mueller. He reiterated that Thursday in response to a reporter’s question at the White House. That may be the main reason for this week’s departure of attorney John Dowd from his legal team, Wisenberg said. He added, however, that he agrees with Dowd.

“It’s a very valid concern, particularly … if he’s really looking seriously — Mueller, that is — at obstruction of justice,” he said. “They appear to have potentially an extremely broad view of obstruction. And that would make me even more cautious as an attorney.”

The obstruction of justice theory in the Trump case holds that the president acted corruptly when he reportedly asked then-FBI Director James Comey to back off the investigation of national security adviser Michael Flynn — and then subsequently fired the director.

Wisenberg (pictured above) suggested that Trump might give Mueller more evidence by talking — even if he was not trying to improperly obstruct an investigation. Many legal experts also have warned that talking for hours to skilled prosecutors could set the president up for a “perjury trap” if he says things that can be factually disputed.

On another matter, Wisenberg said he was stunned by reports that former Deputy FBI Director Andrew McCabe approved a criminal investigation into whether Attorney General Jeff Sessions committed perjury when he testified at his confirmation hearing.

Why Robert Mueller Has the Safest Job in Washington

Democrats have complained bitterly that Sessions did not disclose a 2016 meeting he had with then-Russian Ambassador Sergey Kislyak in response to a question about supposed “constant contacts” between the Trump campaign and the Russians.

Wisenberg noted that the FBI and the Justice Department did not open investigations after National Intelligence Director James Clapper falsely testified to Congress about whether the government was collecting data on Americans under a cellphone surveillance program.

Former Attorney General Eric Holder also did not face an inquiry over false statements he made regarding the “Fast and Furious” gunrunning operation run by the Bureau of Alcohol, Tobacco, Firearms and Explosives, Wisenberg said.

“It’s almost never done,” he said. “People from both parties go up and testify. This has happened for years. They sometimes give false testimony, not necessarily intentionally. They say things that turn out to be incorrect … DOJ virtually never, the FBI virtually never, opens one up.”

PoliZette senior writer Brendan Kirby can be reached at [email protected]. Follow him on Twitter.