- - Sunday, January 28, 2018


A number of years ago, I was in criminal court waiting on a client’s case to be called. A pro-se defendant was pleading his case with the judge and saying things he should not. The judge advised him a couple of times not to talk. Finally, in exasperation, the judge looked down at him and said, “Sir, you have the right to remain silent but apparently not the ability.”

Someone needs to tell that to President Trump.

The president is on a roll. The tax cut package he championed is putting money in to the pockets of Americans. He beat Chuck Schumer, Nancy Pelosi and the Democrats on the shutdown. And he is winning the battle against special prosecutor Robert Mueller.

Most Americans are outraged by the conduct of FBI agent Peter Strzok and Department of Justice attorney Lisa Page. The incredible number of text messages sent between the two talked of their enmity for Donald Trump, support for Hillary Clinton and political intrigue that suggests the inquiry into President Trump is nothing more than a political witch hunt.

Robert Mueller now wants to interview the president. President Trump responded with his typical bravado. He said he would not only answer questions from Robert Mueller, he would answer them under oath!

Someone needs to get President Trump and give him the sage advice that judge issued a few years ago.

Up until now, the Mueller investigation has been seriously flawed. With the discovery of the text messages between Strzok and his paramour Page, plus the overwhelmingly partisan nature of the hiring of prosecutors, anyone indicted by the special prosecutor has a pretty good chance of getting out of the indictment. The conduct of the government officials reaches the level of outrageous government conduct and selective prosecution. Those are grounds for dismissal of the indictments, for most of the Trump team and especially for the president.

That is, unless Donald Trump snatches defeat from the jaws of victory.

Everything that is going for President Trump could end with the simple slip of the tongue.

If the president gets the facts wrong, simply misspeaks for forgets a detail, suddenly he faces what lawyers call, “a process crime.” Suddenly he will be looking at obstruction of justice or perjury.

This is exactly what happened to Lewis “Scooter” Libby. Mr. Libby was the advisor to then-Vice President Dick Cheney. In October 2005, Mr. Libby was charged with obstruction of justice, perjury and false statements to the FBI. Mr. Libby was the victim of incredible prosecutorial misconduct. He was also the victim of a very poor memory.

That poor memory caused a felony conviction for Mr. Libby. He was sentenced to three years but President Bush commuted his sentence.

President Trump needs to remember Scooter Libby.

One comment off script and he could be looking at an indictment for the same things.

The best thing that could happen would be for President Trump’s lawyers to screw up any meeting between the president and Robert Mueller. While Mueller could compel the president to testify in front of a grand jury, that is a very dangerous step and there is no indication that Mueller would do that.

President Trump would do well to remember the fact that he does have the right to remain silent.

The question is, does he have the ability to do so.

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