(PhatzNewsRoom / NY Daily News) —- Rudy Giuliani said President Trump could refuse to comply with a subpoena to answer questions from the special counsel investigating Russian election interference — a claim disputed by legal experts.
The former New York mayor who is now a lawyer for Trump said Sunday he doesn’t think the President should sit down with special counsel Robert Mueller — and that he wouldn’t have to talk even if subpoenaed.
“We don’t have to,” Giuliani said on ABC’s “This Week” when asked if Trump would cooperate if Mueller subpoenas him. “He’s the President of the United States. We can assert the same privilege as other presidents have.”
But legal experts said Giuliani’s confidence is baseless. Mueller would be the favorite in the epic legal battle that would likely ensue if Mueller issued a subpoena and Trump refused to answer it, they said.
“No one is above the law,” said New York Law School professor Rebecca Roiphe.
The Supreme Court ruled in a case involving Richard Nixon that the President could not use executive privilege to refuse a subpoena for White House tapes.
President Bill Clinton was also served with a subpoena by independent prosecutor Ken Starr, though the order was never put to the test because Clinton ultimately agreed voluntarily to testify before a grand jury.
Trump could try to duck a subpoena using a different legal theory, that as President he has complete control over the Department of Justice — but Roiphe says she doesn’t think that would hold water, though there’s disagreement among experts. “Prosecutorial independence is fundamental to American democracy,” she said.
“I think Giuliani was just posturing,” said Bradley Simon, a former federal prosecutor and top white collar criminal defense lawyer, who predicted an executive privilege claim would go nowhere. “He’s not above the law. He has to comply with subpoenas.”
Lisa Griffin, a law professor at Duke University, said the case could end up back at the Supreme Court if Mueller pursues it.
“It’s not accurate to say that sitting presidents never have to comply with subpoenas. They have and they do,” she said.
Mueller is looking to question Trump, and has a list of four dozen wide-ranging questions to ask him, obtained by the New York Times. Trump has also said publicly he would like to talk – but Giuliani said he’s not prepared to make that happen.
“Not after the way they’ve acted,” he said on “This Week.” “I came into this case with a desire to do that, and they just keep convincing not to do it.”
Giuliani did not rule out that Trump could invoke the Fifth Amendment right to protect himself from self-incrimination and decline to answer questions if he does sit down with Mueller.
“How can I ever be confident of that?” he said. “Every lawyer in America thinks he would be a fool to testify. I’ve got a client who wants to testify.”
Giuliani suggested that he would “walk him into a prosecution for perjury” if he advised Trump to answer questions.
Trump has a long record of making false statements in public, which has led many legal experts to say he could get himself in trouble if he does submit to grilling by Mueller.
But Giuliani insisted Trump could end up pursued for perjury even if he tells the truth, since investigators may instead believe the account from former FBI director James Comey, who was fired by Trump.
Investigators are examining whether Trump fired Comey to impede the Russia investigation before it was taken over by the special counsel, which could add up to obstruction of justice. Comey says Trump demanded his loyalty and asked him to back off a probe into former National Security Advisor Michael Flynn, charges Trump denies.
“Could Comey be lying? You’re damn right he could be lying…And we’re going to walk ourselves into a trap like that?” Giuliani said. “The special counsel so far seems to think that Comey is Moses. And I happen to think Comey is Judas.”
“You couldn’t put a lawyer on the show who wants to keep his law license to tell you he should testify,” Giuliani said.
With Victoria Bekiempis, Terence Cullen