The president and his team are on the offensive against Special Counsel Robert Mueller. That’s not new, of course.
What is new is the tone of the attacks, which have come over the last 24 hours via Donald Trump’s Twitter account and interviews with Rudy Giuliani. Giuliani and Trump sound increasingly desperate, and their talking points are increasingly nonsensical. Giuliani has also resurfaced an old talking point that wasn’t particularly effective before: that collusion with the Russians isn’t a crime. They seem to be throwing everything including the kitchen sink at Mueller and seeing what hits him.
Although this is a tense moment for Trump legally, Mueller is not the most obvious target. There’s an escalating battle between Trump and Michael Cohen, his former fixer, but that concerns a case in New York that’s separate from the Mueller probe. Starting this week, Mueller’s team will try the former Trump campaign chairman Paul Manafort in federal court in Virginia, but the trial hasn’t been mentioned in their attacks.
Whatever the acute cause, Trump is acting defensive. In a series of tweets on Sunday, the president went after Mueller:
There is No Collusion! The Robert Mueller Rigged Witch Hunt, headed now by 17 (increased from 13, including an Obama White House lawyer) Angry Democrats, was started by a fraudulent Dossier, paid for by Crooked Hillary and the DNC. Therefore, the Witch Hunt is an illegal Scam!— Donald J. Trump (@realDonaldTrump) July 29, 2018
....Also, why is Mueller only appointing Angry Dems, some of whom have worked for Crooked Hillary, others, including himself, have worked for Obama....And why isn’t Mueller looking at all of the criminal activity & real Russian Collusion on the Democrats side-Podesta, Dossier?— Donald J. Trump (@realDonaldTrump) July 29, 2018
Is Robert Mueller ever going to release his conflicts of interest with respect to President Trump, including the fact that we had a very nasty & contentious business relationship, I turned him down to head the FBI (one day before appointment as S.C.) & Comey is his close friend..— Donald J. Trump (@realDonaldTrump) July 29, 2018
It’s a classic Trump cocktail of fact, innuendo, and nonsense. Mueller really does have 17 attorneys. Many, though not all, of them have given to Democratic candidates in the past, most in small amounts, but some in thousands of dollars. The part about the probe being illegal because it is based on the Steele dossier is nonsense.
The third tweet contains the real mystery. Trump claims that Mueller has a contentious business relationship with him. He additionally argues that the fact that he interviewed Mueller to replace James Comey as the FBI director should preclude him from leading the probe.
This represents a surprising new interest in conflicts of interest for the president, who has pooh-poohed concerns about conflicts of his own at every turn, including refusing to divest from his substantial personal holdings. (A federal judge last week allowed a lawsuit centered on his conflicts to proceed.)
Even if his newfound concern was sincere, it doesn’t stand up to scrutiny. It doesn’t make sense that Trump would have a personal dispute with Mueller so hostile that it would preclude his work as a special counsel, but not so hostile that it prevented Trump from considering him for an important job.
And what is the supposed “nasty & contentious relationship” the two men share? Trump didn’t say, and appearing on CNN Monday morning, Giuliani refused to elaborate. He claimed that he didn’t know, and that if the president didn’t explain, it was incumbent on Mueller to do so. Of course, lodging an accusation like this without offering any substance is just innuendo. As Giuliani, a former prosecutor, knows well, the burden of proof is on the prosecution.
The most likely bet is that what Trump is talking about isn’t new at all. The president reportedly tried to have Mueller fired in June 2017, citing an old disagreement over fees at a Trump golf course in northern Virginia. But if that’s one of the “conflicts,” it’s a trifle. As The Washington Post reported in January, “The dispute was hardly a dispute at all. According to a person familiar with the matter, Mueller had sent a letter requesting a dues refund in accordance with normal club practice and never heard back.”
As it happens, the Justice Department has guidelines for what constitutes conflicts of interest—not just interpersonal issues, but donations to campaigns as well. There’s no public evidence that Mueller and his team haven’t followed them. Moreover, Giuliani admitted that he assumed that Mueller had disclosed the mystery conflict, be it golf-related or something else, to Deputy Attorney General Rod Rosenstein when the special counsel was appointed.
It’s not unusual for Giuliani to undercut the president’s case during his interviews, including in recent media appearances. His extended chat Monday with CNN’s Alisyn Camerota was no different. Hearing a conversation with Giuliani makes the president’s speaking style seem linear and coherent by comparison, but at several moments the lawyer made notable comments.
For one, Giuliani essentially admitted that Trump’s strategy for grappling with his legal headaches is distraction.
“When you’re getting beaten up by all kinds of anonymous tweets coming from [Cohen’s lawyer] Lanny Davis and Cohen, and you put out something like that, you have every right to say, ‘You explain it, Mueller. Stand up and be a man,’” Giuliani said. The performative machismo here aside, the Cohen case is in New York and is separate from the Mueller case—so Giuliani is highlighting how the attacks on Mueller are a misdirection.
Giuliani also accused Mueller of acting in “bad faith” in arranging an interview with the president, a rich accusation given that Giuliani keeps making conflicting statements about whether Trump will agree to an interview and on what grounds. In fact, as Giuliani noted, there are disagreements within the president’s own legal team about whether he should agree to an interview. One wonders how Mueller could negotiate in good faith with a divided Trump team.
More importantly, Giuliani mentioned both on CNN and on Fox & Friends that collusion is not a crime.
“I have been sitting here looking in the federal code trying to find collusion as a crime,” Giuliani said on Fox News. “Collusion is not a crime.”
“They are not going to be colluding about Russians, which I’m not, I don’t even know if that’s a crime, colluding about Russians,” he said on CNN. “You start analyzing the crime. The hacking is the crime.”
But his message seemed in conflict with itself. Echoing Trump’s “No Collusion!” tweet from Sunday, Giuliani later denied that any collusion had occurred. Why question the legal importance of collusion if you’re confident nothing of the sort occurred?
The Trump team is shifting the goalposts in an important, if erratic, way, but it’s also true that they’ve moved them before. Although instant reaction to the Giuliani interviews posited this as a sea change, it’s really a return to an older talking point. One year ago—after the Trump Tower meeting between campaign officials and a Russian lawyer was first revealed—the president went at jarring speed from insisting there was no collusion to saying that if collusion occurred, it was right and proper and standard operating procedure for political campaigns. (Experienced political hands of both parties refuted this.) In December, the president’s legal team—much of which has since departed—again resurfaced the point that collusion is not illegal.
This is all beside the point. Just because collusion is not a crime doesn’t mean that crimes couldn’t have been committed in the course of collusion—that’s exactly what Mueller is investigating. Nor does the lack of a law against collusion make it acceptable. As Camerota asked, “Isn’t all of this unbecoming for a president of the United States?” Giuliani said he didn’t know.
Nonetheless, Giuliani claimed in a recent interview with Axios that the special counsel’s investigation is going nowhere. “Why don’t you write a report and show us what you have, because they don’t have a goddamn thing,” he said. “It’s like a guy playing poker. He’s bluffing and he’s only got a pair of twos.”
That’s a strange thing to say in the same week that Mueller is putting Trump’s former campaign chairman on trial. Mueller has also delivered a slew of other indictments, and he’s moving faster than his predecessors. It’s also unlikely that Giuliani, in his days as a U.S. attorney, would have been willing to dump the evidence he had before he’d completed an investigation simply because a subject demanded it.
Even though Giuliani’s and Trump’s claims are baseless or incoherent, and even though there seems to be no organization behind them, their effort might be working. A July CNN poll showed public approval of the Mueller probe down to 41 percent, following a steady decline. The special counsel’s personal approval is down, too. Even if what’s actually happening is just more polarized views of Mueller, that follows Trump’s typical strategy of divisive plays to his supporters.
Low approval won’t deter Mueller, who is said to be immune to public pressure, from his work. But since Mueller has reportedly told the White House that he will follow Justice Department directives that say a sitting president cannot be charged with a crime, Trump’s fate will be decided not by the legal system but by the political ones. From a legal and logical point of view, the latest comments from Trump and Giuliani hold no water. From a political point of view, that may not matter.