HORIST: What can Trump do about the endless investigations?

Ever since the appointment of Special Counsel Robert Mueller, Democrats and the New York/Washington media has maintained an almost daily narrative that President Trump wanted to, was about to, and even tried to fire him.  This persisted despite assurances from the White House that there was no plan to remove Mueller – at least not at the time.

The thought was never completely off the table, however, because Trump had set forth some red lines that would have him reconsider taking action against Mueller. Trump has no problem with investigating Russian interference in our elections.  He has said so several times – although the media does not air his quotes on that subject.  Trump opposed the investigation of collusion and its offspring, obstruction of justice.  He also objects to having the investigation go off willy-nilly into matters unrelated to Russian interference in the election.  In appointing Mueller, Deputy Attorney General Rod Rosenstein gave the Special Counsel more latitude than seemed necessary and appropriate to the stated purpose.  If ever there was a red line for Trump, the raid on the office and living quarters of the President’s personal and official attorney, Michael Cohen, is it.

All sides can agree on one thing.  This is no small matter.  A raid on the office of an attorney is not unheard of, but extremely rare.  When the President of the United States is the client of that attorney, the significance of the raid is compounded.  

The attorney-client privilege is far from absolute and not the shield that even many lawyers might believe.  Because such raids are rare, lawyers often do not protect the privilege as they should.  They may have third parties in on conversations and meetings of a highly confidential nature.  That kills the privilege. A lawyer may tell others about matters without the client present.  That kills the privilege.  If any information relates to a crime by the attorney – in association with the client or not – that kills the privilege.

While many media pundits and panelists talk about the safeguards in the process of securing lawyer files, it is not quite as pristine and perfect as they suggest.  Those reviewing the seized documents have considerable leeway in deciding what information is protected and what is not – and it is the nature of prosecutors to limit the privilege as much as possible.

A second problem for Cohen and possibly Trump is the amount of information revealed that may prove to be embarrassing if not criminal.  If you ever thought about having revealed things you said to others about your spouse or closest friend, you can understand the potential for embarrassment. This is heightened by the fact that the information is dealing with the President in a highly charged partisan atmosphere and with such sensational subjects as sex and payoffs. The potential for leaks of salacious damaging information is enormous.

One can only speculate as to the purpose of the raid.  To get the warrant, prosecutors would have to convince a judge that it is probable that the information sought will give evidence of a crime.  What possible crimes could they be looking to prove?

Some have speculated that interest of the prosecutors could have to do with Russian money laundering — that old standard of Russian collusion with the campaign.  That is very unlikely, however, since the case involving Cohen was kicked to a New York federal prosecutor because the suspected activities were outside the mandate of the Special Counsel.  Russian collusion is a centerpiece of the investigation.  This leaves a few other possibilities.

Some pundits theorize that it may have to do with the $130,000 payment to the porn performer as a violation of Federal Election laws.  That would also seem unlikely since such cases are generally first handled administratively by the Federal Election Commission – although, in view of the John Edwards case, it is possible a criminal case can be argued.  It is also important to remember that Edwards, whose affair and payoffs were revealed during his presidential campaign, was acquitted.

The prosecutors could also be looking into possible illegal activities associated with the Trump real estate empire.  It would be almost impossible to find a major developer whose company did not violate laws on occasion, with or without the principal’s knowledge.  That is the one area that gives the appellation “witch hunt” some legitimacy.  These are starting to look like investigations in search of crimes.

The other reality is that if Cohen broke any laws in any of the cases – Russian involvement, porn payoffs, Trump business dealing – there is no certainty that Trump would be involved.  It may be like the Manafort/Gates/Flynn indictments that deal with crimes not related to the Trump or the campaign.  Why Mueller and the folks at the Department of Justice thought the Cohen case was outside the scope of the Special Counsel authority and the Manafort/Gates/Flynn cases were not, is puzzling, to say the least.

Under even the most favorable scenarios for Trump and his presidency, it is obvious that the various investigations and lawsuits are going to require a lot of attention – and engender a lot of anger and frustration.  The fact that any legitimate investigation is inextricably tied to a very strident never-Trump resistance movement, makes the situation even worse.  The dragging on of these multiple investigations will, despite any best efforts to the contrary, hamper the Trump agenda.  With Democrats and much of the media already assuming the GOP will lose control of the House, the investigations could multiply and become much more political than they are.

So, what if Trump points to his red line or uses his authority to reign in the Special Council?  His critics and even some on-again-off-again allies suggest that it would unleash a political storm that would take down his presidency.  It would be the one act that could gain support for impeachment among establishment Republicans on Capitol Hill.  Many in the GOP believe such action would cost them the House for sure.

For Trump, it is a high-risk gamble.  Do you hang in with Mueller, believing in your innocence and the potential of keeping control of the House (ergo no impeachment effort) or do you shut down what you consider to be bogus investigations and take your chances with impeachment-minded Democrats controlling the House?  There is a third scenario, however.  Can Trump shake up the DOJ by firing Rod Rosenstein and use the ensuing month to focus on policies and his job rating without the drip, drip, drip of media accusations?

The answer to the first part of that question is, yes, he can.  It goes something like this.  Trump fires Rosenstein and replaces him with a friendlier Deputy AG – one who will restrict Mueller’s work to investigating Russian meddling in the election.  The new Deputy would then order the closing down of the Trump collusion portion of the investigation base on Mueller’s findings, which so far have exonerated Trump. He would site the comments from Deputy FBI Directory Andrew McCabe to then White House Chief of Staff Reince Priebus that the FBI found no criminal collusion; statements by then FBI Director James Comey that the President was not under investigation for collusion; and finally Mueller’s report that Trump was not the target of a criminal investigation.  The Deputy AG could then sight the hundreds of millions of dollars and thousands of hours over more than a year expended on an investigation that has not yet found any wrongdoing by Trump or his campaign.

Coincidentally to all this, Cohen withdraws his representation of Trump in all its manifestations – presidential, corporate and personal.  Trump then ends the New York federal investigation by pardoning Cohen.  Since officially, Trump knows he is not a target of any criminal investigation – so sayeth Mueller – there would be little risk of obstruction of justice.  The pardon would be on a stated humanitarian basis.  If there were violations of state law.  Charges could still be brought by the New York Attorney General or a local state’s attorney.  Trump can only issue pardons for potential or actual federal crimes.

And what about that stormy Stormy Daniels case?  Since Trump has said he knew nothing of the non-disclosure deal, he should advise Cohen, who controls that case, to get his money back from Daniels, as she has promised, and tear up the NDA.  She has already told most of her story to the public through the media and her star-struck attorney Michael Avenatti.  If she has more salacious details, who cares?  If scores of women come forward to make accusations, who cares. Ironically the more accusations, the less credible they ALL become.  It comes down to a she-said/he-said – and the less Trump says the better.  Their credibility is worse than Trump’s.  Do Daniels and others have some naughty images or recordings?  Who cares?  If they can get a few bucks out of some sleazy publication, who cares?  Returning the money would also take the wind out of any FEC election contribution case.

Yes, If Trump followed the aforementioned path, there would be an enormous howl among the never Trump crowd.  They will mislabel it as a constitutional crisis – mislabeled because all Trump’s actions and the opposition’s reactions will be played out according to the Constitution.  Political crisis?  Very possibly.  Constitutional crisis? No. 

Ending the collusion portion of the investigation would not be devoid of some popular support – especially since the Russian meddling portion would proceed.  It would be well received by the 35 to 40 percent who remain on team Trump.  There are also those who would welcome an end to the overly long melodrama.  Polls are already showing a growing public backlash to the investigation. 

After firing Mueller, Trump would face a period of leaks that would suggest what might have been uncovered and determined had the investigation run its course.  On the other side of the coin, the pending investigations into misconduct by senior FBI officials, the use of the Dossier, Russian money into the Clinton Foundation would come out from the shadow of the Mueller investigation.

One can never be sure in these times where the firing of Rosenstein might take the Trump presidency – above the partisan fray or in a nose dive.  But the ending of limiting the collusion portion may not be quite the catastrophe that Trump’s detractors may believe or wish.

Larry Horist is a conservative activist with an extensive background in economics, public policy and politics. Clients of his consulting firm have included such conservative icons as Steve Forbes and Milton Friedman, as well as the White House. He has testified as an expert witness before legislative bodies, including the U. S. Congress, and lectured at major colleges and universities. An award-winning debater, his insightful and sometimes controversial commentaries appear frequently on the editorial pages of newspapers across the nation. He can be reached at lph@thomasandjoyce.com.