Donald Trump's campaign to discredit the Russia investigation may be working. It may also be damaging American democracy.
In a warren of low-ceilinged rooms on the ground floor of the West Wing, down the stairs from the Oval Office and next to the Situation Room, Donald Trump’s lawyers are waging war.
They’re locked in battle with Robert Mueller, the special counsel investigating Russia’s interference in the 2016 election, who has indicted 19 people over the past 13 months, five of whom have pleaded guilty. Now he is homing in on the investigation’s most powerful subject: the President, whom Mueller wants to testify under oath about what he knows.
It’s a dangerous moment for Trump. If he agrees to talk, the notoriously undisciplined President risks making a false statement, which could be a crime like the one that led to Bill Clinton’s impeachment. But if he refuses, Mueller could issue a subpoena, instigating a long, high-profile court battle over whether Trump could be forced to testify. The two legal teams–Mueller’s squad of top prosecutors and Trump’s rotating cast of advocates–are haggling over what an interrogation would look like: how long it would be, what topics would be on the table and whether the session would be recorded. Before the President talks to investigators, Trump’s team wants to see the authorization letter that established Mueller’s authority, according to Trump’s lawyer Rudy Giuliani. They are also demanding the special counsel’s report to be issued within 60 days of any interview.
As that conflict grinds on largely out of sight, Trump is leading a brazen political campaign to discredit Mueller. In Trump’s telling, the special counsel’s investigation was illegitimate from the start, the product of partisan bureaucrats hell-bent on nullifying his election and willing to stoop to nefarious tactics to frame the President’s team and cover up the crimes of Barack Obama and the Clintons. The President paints the probe as an unconstitutional distraction that has dragged on and turned up nothing, while casting a pall over his achievements.
Trump’s allies have taken up his battle cry. Giuliani, Trump’s primary legal spokesperson, has declared that a President cannot be indicted and has the power to pardon himself for any crime. Conservative commentators have picked up on that tack, while GOP members of Congress who once hailed Mueller’s integrity have seconded the provocations or gone conspicuously silent. The President “is trying to delegitimize the entire prosecution,” says Peter Zeidenberg, a former deputy special counsel under George W. Bush.
It seems to be working. In a May CBS News poll, 53% of Americans said they believed Mueller’s investigation was politically motivated, up 5 points in five months. An Economist/YouGov poll the same month found that 75% of Republicans agreed with Trump’s claim that the probe is a “witch hunt” (though only 37% of the overall public agreed). With Trump’s 87% support among Republicans, the only President since the 1940s who has been as loved by his own party after 500 days in office is Bush, post-9/11.
This playbook has been run before by Clinton, whose impeachment lawyer, Emmet Flood, recently joined Trump’s team. Clinton so succeeded in discrediting the probe run by then–independent counsel Kenneth Starr that his public support actually increased, and he survived impeachment. “This case is not going to be tried before a jury,” Giuliani tells TIME. “It’s not a criminal case. It’s an investigation that’s going to result in a report, and the issue will be what happens to that report, and public opinion is going to have a lot to do with that.”
But Trump’s strategy goes even further than Clinton dared: it involves asserting increasingly broad claims of presidential impunity. In a 20-page memo sent to Mueller in January and published on June 2 by the New York Times, Trump’s lawyers articulated an almost boundless view of Executive authority, arguing that he cannot be compelled to testify and cannot have obstructed justice because he has control over all federal investigations. Trump himself claimed in a June 4 tweet he had an “absolute right” to pardon himself, an idea in conflict with the centuries-old principle of British and American law that no one can be a judge in his own case.
Trump’s critics hear in these ever-expanding claims of presidential authority not just an echo of Richard Nixon, but the kind of unchecked power Americans have bridled against from the moment they broke with the British monarchy in the 18th century. Spurred by his desire to discredit the Mueller investigation, Trump is putting America’s founding principles on trial, from its independent justice system to the separation of powers to the rule of law. It’s too early to say how the war on Mueller will end. But just as the post-Watergate period redefined presidential power in America, Trump’s vision of the office may well determine the contours of the American government he leaves behind.
When Mueller was appointed special counsel in May 2017 by Trump’s handpicked Deputy Attorney General, Republicans couldn’t stop praising him. Speaker of the House Paul Ryan said Mueller would help “ensure thorough and independent investigations are allowed to follow the facts wherever they may lead.” Former House Speaker Newt Gingrich called the former FBI director a “superb choice” and tweeted that “his reputation is impeccable for honesty and integrity.” Even Trump, though furious behind the scenes, issued a measured statement; a month later he called Mueller “an honorable man.”
Trump now accuses the straitlaced former Marine of political bias and corruption, blasting the investigation as “an attack on our country.” Gingrich calls Mueller an agent of the “deep state,” his investigation an “open-ended hunt for guilt.” Kevin McCarthy, Ryan’s most likely successor, says “it’s time to wind this down.” Republican chairman of the House Judiciary Committee Bob Goodlatte decried “the magnitude of this insider bias on Mr. Mueller’s team.”
Democrats believe this barrage is a coordinated smear campaign run out of the White House. Representative Adam Schiff, the top Democrat on the House Intelligence Committee, tells TIME the committee’s Republicans have engaged in “clear and exposed coordination” with the White House “to undermine the investigation.” Trump’s lawyer Jay Sekulow admits there is method to the madness. “We’re fully cognizant of the fact that this inquiry has a public component to it,” he tells TIME.
But Trump’s allies say the war against Mueller is more improvised than planned. The President launches his assault on the investigation via impulse and instinct, his Twitter blasts inspired and magnified by a feedback loop that injects fringe theories and unfounded suspicions into the mainstream debate about the probe.
It begins, according to those who see it in action, with the President scrolling through right-wing Twitter and picking up on phrases and ideas he likes. “He sees the ones that are the most popular and getting the most [of the] zeitgeist, most attention on social media, and he repeats it,” Eric Bolling, a former Fox News anchor who regularly speaks to the President, tells TIME.
Often, Trump latches onto conspiracy theories or lines of attack that he’s seen on Fox News or been fed in late-night conversation with his friends, including Fox News host Sean Hannity. Trump’s tweets cite Fox News shows and commentators by name. Sometimes the feedback loop goes the other way around, with Trump generating a suspicion and the right-wing media bolstering and amplifying it. “It’s almost like he uses Fox & Friends to vet which [topics] are good enough or are legit, and he will go ahead and attack those and light those up,” says a friend of Trump’s who is familiar with his social-media use.
A typical White House uses a structured process to disseminate messages, with talking points and conference calls to ensure its allies are speaking from the same script. When it comes to Mueller, however, multiple sources in and around the White House insist there’s no such discipline. “This is not a coordinated caliphate,” a Republican Congressman tells TIME. “This is al-Qaeda, where everyone is their own cell, lobbing Molotov cocktails, firing at will.” One lobbyist close to the White House says he takes messaging cues from Twitter.
Even as they deny orchestrating the anti-Mueller campaign, Trump supporters are happy to tout its results. “They’re talking to the American people, who have a right to know,” Joseph diGenova, a lawyer who considered joining Trump’s legal team, says of Trump’s tweets and Giuliani’s media appearances. DiGenova says Trump has been “restrained” in his commentary on the case considering the extent of his victimization by “the FBI, the Department of Justice and the CIA.”
Until March, Trump still had yet to use Mueller’s name on Twitter. But subsequent months have seen a rapid escalation of the PR war against the special counsel. Nowhere was the technique more evident than in the recent controversy that the President dubbed “#spygate.” After it was revealed that the FBI used an informant to approach members of Trump’s campaign, the National Review asserted that this amounted to the Obama Administration implanting a “spy” in the rival party’s election operation. Trump leaped at the idea. “SPYGATE could be one of the biggest political scandals in history!” he tweeted on May 23. A thousand cable chyrons were born; on Fox News, commentator Andrew Napolitano lamented, “It’s clear that they had eyes and ears all over the Trump campaign.” Trump expounded on the idea. “I hope it’s not true,” he told reporters, “but it looks like it is.”
Trump didn’t cite any evidence for the claim, but his allies in Congress rushed to bolster it. House Intelligence Committee chairman Devin Nunes demanded that the department brief a Republicans-only group of lawmakers on the FBI’s confidential source. Critics said it would represent an alarming erosion of the separation of powers if a political party were permitted to meddle on behalf of the President. On May 24, classified briefings were held, with Democrats allowed to attend. But the appearance of White House interference intensified when Flood and White House chief of staff John Kelly also showed up.
The FBI’s actual goal, according to members of both parties who have seen the intelligence, was to determine what the Russians were up to, not to surveil the Trump campaign. A Republican Congressman who attended, Trey Gowdy of South Carolina, told Fox News that “the FBI did exactly what my fellow citizens would want them to do when they got the information they got, and … it has nothing to do with Donald Trump.” Gowdy, long a favorite in conservative circles, was savaged in right-wing media for his perceived disloyalty. Despite three weeks of widespread debunking, Trump was still stoking his phantom controversy. “SPYGATE at the highest level,” Trump tweeted June 5. “This makes the Nixon Watergate burglary look like keystone cop stuff.” Another seed of doubt had been planted in the minds of Trump’s followers about the integrity of federal investigators.
When Trump tweeted on June 4 that he has the “absolute right” to pardon himself, some Republicans expressed shock. The President has broad pardon power in the Constitution, but the Justice Department’s Office of Legal Counsel determined in 1974 that a self-pardon would run afoul of bedrock legal principle. Senator Susan Collins called such discussion a “tremendous abuse of his authority.” Senator Lindsey Graham, a sometime Trump ally, dryly noted that the threat of dirty pardons featured in Nixon’s impeachment proceedings.
But there were limits. At the Capitol, reporters crowded around Senator Ted Cruz, a Harvard Law–educated former state solicitor general, to ask if the President indeed has the power to self-pardon. The typically loquacious Cruz went silent for a remarkable 18 seconds. Finally, he muttered, “That is not a constitutional issue I’ve studied, so I will withhold judgment at this point.”
At the special counsel’s nondescript offices in southwest Washington, Mueller’s team continues undeterred, running a tight ship that doesn’t appear to leak or engage with the press. Mueller speaks not with statements but with legal actions. He has brought charges against a tightening circle of Trump’s orbit, including former campaign chairman Paul Manafort, former National Security Adviser Michael Flynn and former foreign policy aide George Papadopoulos. Mueller has also indicted 13 Russian nationals and three Russian companies on conspiracy charges related to the propaganda effort in the 2016 election. Trump’s defenders note that none of the crimes alleged so far implicate Trump or show explicit collusion with Russian agents. They also bemoan the investigation’s price tag: nearly $17 million so far, according to spending reports filed by the Justice Department. (The investigation of Clinton spent $52 million over nearly five years.)
Whether or not Trump is interviewed is critically important. Without that question settled, the President cannot rest easy, and Mueller cannot wrap up his inquiry. In April, the New York Times obtained a list of almost 50 questions Mueller’s team had floated to Trump’s lawyers. The potential queries focused on Trump’s firing of former FBI director James Comey and Flynn; his relationship with Attorney General Jeff Sessions; and a summer 2016 meeting at Trump Tower among campaign officials, Donald Trump Jr. and Russians peddling information on Hillary Clinton. There were also questions related to Trump’s business and family. Trump’s lawyers hope to limit the scope of the questions. ”
As negotiations over an interview continue, the posture taken by Trump’s lawyers has changed. For months, his attorneys pledged full cooperation with Mueller; according to the January memo, the team has turned over tens of thousands of documents related to the case. But while, according to Sekulow, “there continues to be a professional dialogue between our team and the office of the special counsel,” the President’s lawyers have become more combative. Giuliani claimed on June 6 that the special counsel’s office is “trying very, very hard to frame” the President.
Once Mueller concludes his work, the two battles in this war, legal and political, will converge into one theater. And that is when the wisdom and costs of Trump’s public strategy will become clear. Perhaps the investigation won’t turn up anything that implicates Trump in wrongdoing. Nothing to that effect has been formally alleged. But Trump is preparing for the possibility that Mueller will make serious charges. That’s when the groundwork Trump’s laying now could pay off.
Even if Mueller finds that Trump has committed crimes, Trump’s team contends a sitting President cannot be indicted. Legal scholars differ on this point, but Giuliani claims Mueller has informed the White House he would not try to do so. (Mueller’s spokesperson, Peter Carr, declined to comment.) Mueller is required to file a report on his findings to Deputy Attorney General Rod Rosenstein, according to the special-counsel regulations. Rosenstein, in turn, would face pressure to send the report to Congress.
Then it would be up to Congress to decide what to do–and that’s when the outcome of the legal inquiry would be determined in the hyperpartisan political arena. “The Congress is going to be driven to a large extent by public opinion,” Giuliani says. Under the Constitution, impeachment proceedings are initiated by the House, which can pass an article of impeachment with a simple majority. If Mueller issues his findings after this November’s midterm elections, the House may well be controlled by Democrats. If they impeach the President, it would be up to the Senate to hold a trial, presided over by the Chief Justice of the Supreme Court. It would require a 67-vote supermajority to convict Trump and remove him from office.
All this will be familiar to anyone who lived through the Clinton saga. Clinton was impeached by the Republican House, and the Republican Senate declined to convict him. It’s highly unlikely that Democrats, who currently hold 49 seats in the Senate, will control more than 67 seats next year. Which means Trump’s removal would require the support of Republican Senators whose own base opposes it. Nixon’s approval rating with Republicans was about 50% when he resigned in 1974. Clinton maintained a 90% approval rating among Democrats through the end of his impeachment saga in 1999.
While Trump cannot control the outcome of Mueller’s probe, his broadsides shape public perception of it, and thus tip the political scales. “What’s been disappointing is how few people have stood up and said, ‘Mr. President, what you’re saying is inappropriate,” says Republican Senator Jeff Flake of Arizona, a critic of the President. “More Republicans need to say that.”
A key question is whether Trump’s quest for self-preservation at all costs is putting the rule of law at risk. Trump “disparage[s] the investigation, but also the individuals who are conducting it, and even more insidiously, the institutions of our government, which are pillars of the protection of our individual rights and security,” says Richard Ben-Veniste, a lead prosecutor during the Watergate scandal. Trump has advanced a vision of American democracy that paints the President as all-powerful, the Attorney General and the Congress as his handmaidens, the top law enforcement and intelligence agencies as corrupt bureaucrats. If Trump’s team takes Mueller to court over a subpoena, the judiciary, too, could find itself riven by politics. Sessions has endured the President’s public floggings for months. Rosenstein, says diGenova, is “lucky he’s going to come out alive.”
Trump’s strategy may in the end prove ironic. His claims of unchecked power could end up leaving behind a damaged Executive office and a weakened federal government. But for Trump and his team, all that matters is the president’s survival. Giuliani insists that Trump has done nothing wrong and will be vindicated in the end. As for whether the war on Mueller is working, the President’s lawyer says: “You know when you find out? When it’s over.”
–With reporting by RYAN TEAGUE BECKWITH, BRIAN BENNETT, PHILIP ELLIOTT AND NASH JENKINS/WASHINGTON
Correction: The original version of this story misstated which party controlled the Senate in 1999 when the chamber acquited President Bill Clinton after he was impeached in the House. It was Republicans, not Democrats.