(Bloomberg View) -- In the past, a president under investigation couldn’t afford to plead the Fifth Amendment. While it’s often a good strategy in a court of law -- especially since it can’t be used to infer guilt -- the court of public opinion is a different matter. What president would want to appear to be hiding guilt behind a legal technicality?
All bets are off in the Donald Trump era. The president’s lawyers have reportedly advised him not to cooperate with any request from Special Counsel Robert Mueller’s team to question him. So far, Mueller has not forced the issue with a subpoena, but that could change in the coming days or weeks.
Of course, we don’t know exactly what Trump is thinking. In the past, he has said that he would speak to Mueller, but he has also hedged on that suggestion. It is also hard to avoid the conclusion that the leak regarding his lawyers’ advice is another move in a strategic game between the White House and its investigators.
That move has one obvious explanation: that Trump and his team are testing the waters to see if he can somehow avoid speaking to Mueller. In the first instance, that might simply be a refusal of cooperation, of the kind anyone is entitled to give law enforcement unless a subpoena was issued. Ultimately, if Trump were required to testify under oath, the refusal may take the form of pleading the Fifth.
Trump’s strategy of painting the Mueller investigation as partisan and biased makes this possibility thinkable in a way it would not have been in the past. You can imagine Trump’s public explanation going something like this:
“I am totally in the clear and I’ve never done anything wrong. I’d be willing to speak to an honest, unbiased investigator. But Mueller is on a partisan witch hunt and he’s out to get me. Under the circumstances, anything I say will be twisted and turned and used in a political impeachment process. So my lawyers tell me that I would be better off keeping my mouth shut. As you all know, I hate to do that -- but given Mueller’s bias, it’s my best option. Anyway, it’s what you all would do if Mueller were after you. So I won’t cooperate. I won’t talk to Mueller’s team. And if subpoenaed, I will take the Fifth.”
Could Trump survive this acclamation as a political matter? Much as it pains me to say it, I think the answer is a qualified yes. In the absence of other glaring public evidence that would seem to depict Trump as having committed a clear crime -- more, in other words, than the firing of Jim Comey -- it seems to me plausible and even probable that Trump’s Republican base would accept the decision. No doubt some of them would applaud it.
And plenty of legal experts would argue on Fox News and other right-leaning media outlets that any lawyer worth his fee would tell his client to do the same. The fact that Trump would be listening to his lawyers wouldn’t be treated as cause for worry. It would be treated as evidence that he’s “smart.”
The parallel here is Trump’s response when it was revealed that for some period of time he had not paid any income taxes. Instead of reacting with shame or embarrassment, Trump went on the offensive. He was smart not to pay taxes he didn’t owe, Trump insisted. His base -- and a reasonable number of other people -- seems to have found that account adequate, or at least not so outrageous to stop them from voting for them.
The upshot is that we’re in a different world than we have known in the past when it comes to Trump’s interaction with Mueller. Somewhere, Richard Nixon must be marveling at Trump’s brilliant political skills. Even Bill Clinton, in his heart of hearts, must feel some admiration for the brazenness of Trump’s approach.
Trump is turning a nonpartisan investigation into a political football, discrediting the investigation and any potential outcome. Neither Nixon nor Clinton managed that feat.
So if Trump refuses to cooperate or pleads the Fifth, don’t be shocked. It would break the old rules. But that’s his specialty.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”
To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net.
To contact the editor responsible for this story: Mike Nizza at mnizza3@bloomberg.net.
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