Mueller can't immunize Trump against Congressional impeachment

Mueller can promise immunity, but not for accusing Trump of lying in the testimony he gives under that immunity. And who is to prove Comey and Mueller liars when they contradict Trump?

Mark Langfan

OpEds Donald Trump
Donald Trump
Mark Langfan

Much has been made of the possibility that Special Counsel Mueller will attempt to legally force President Trump to sit down to an interview under oath where Mueller’s team can ask a multitude of wide ranging questions.  

Of course, everyone knows that the sole purpose of this interview will be to catch President Trump in some perjury trap. In a perjury trap, the Person A who is “trapped” can even be telling the truth but be prosecuted for perjury.  This is because someone else, Person B, who is lying but “believed” by the prosecutor to be telling the truth is used as the foil to prosecute Person A. In this case Comey will be the Person B to paint anything Trump says as false.

So, there you have Mueller’s “perjury” case.  Some people have even said Mueller can force Trump to testify because he can give the President trump total immunity and thus vitiate President Trump ability to claim the 5th Amendment against self-incrimination.

However, Mueller’s granting “immunity” to Trump is a legal chimera because Mueller isn’t seeking to indict Trump for a regular Federal crime.  Instead, Mueller is seeking to lay a foundation for crime that allows for Congressional Impeachment. And, Mueller can not grant Trump immunity from Congressional impeachment. Therefore, President Trump’s 5th Amendment protection is legally impervious to Mueller’s legal legerdemain.

First, I must emphasize that there are many legal theoretical and tactical reasons why any Mueller subpoena against President Trump will be defeated. For example, some say a sitting president can’t be indicted, and therefore a President can’t be forced to testify.  Tactically, Rudy Giuliani recently said, the only people who have engaged in “misconduct” have been people in Mueller’s legal team.

Putting these possible arguments aside, at the very end of the day, with just the 5th Amendment and the Impeachment of the Constitution clause at play, President Trump can’t be forced to testify because he can not be “compelled” in the criminal case of Congressional Impeachment “to be a witness against himself.”

Let’s look at the two operative clauses of the United States Constitution that would form the basis of his legal defense: The 5th Amendment to the US Constitution and Article 2 Section 4 of the Constitution.

The 5th Amendment to the US Constitution reads (in pertinent part):

“No person . . . shall be compelled in any criminal case to be a witness against himself, . . ..”

Article Two of the United States Constitution states in Section 4 that "The President, Vice President, and all civil Officers of the United States shall be removed from Office on Impeachment for, and conviction of, Treason, Bribery, or other High Crimes and Misdemeanors."

So again, the key concept is a prosecutor can force a person to testify to facts that would implicate the person in crimes - but only if the prosecutor grants the person criminal immunity.  The theory is that if the prosecutor has granted the person immunity, then any testimony by the person can’t be used in a criminal case against the person testifying. Prosecutors grant immunity when they think they will land a bigger criminal with this person’s “immunized” testimony.  There are variants of immunity given by prosecutors. But for purposes of this discussion, we’re assuming Mueller gave the highest level of immunity to President Trump that he could possibly give.

In the Mueller game with President Trump, once Trump sits down and invokes the 5th, Mueller will give him “total immunity.”  But, that’s only immunity for other crimes, and not immunity for Mueller asserting Trump is now lying in his present testimony.  So, Mueller can legally attack Trump claiming anything Trump says is false. There’s the perjury trap.

The key is that Mueller is not looking to indict President Trump, but to create a “criminal record” for referral for impeachment by the Congress.  And, Special Counsel Mueller is created from the Article 2 constitutional powers and holds no Congressional powers. So, Mueller can not “immunize” President Trump from the Congress using any of his testimony as the basis for the crime of Impeachment.

In fact, the sole reason Mueller wants to examine President Trump is to concoct a fictitious basis for a criminal Congressional impeachment. If Mueller had any real evidence of Russian collusion, the entire world would have known about it already. Mueller has nothing, so he desperately needs Trump to slip up and say something that Comey can falsely contradict to concoct a perjury impeachment charge.

Therefore, the simple legal question is whether the Article 2 section 4 acts of “Treason, Bribery, or other High Crimes and Misdemeanors" are in fact “crimes” under and within the definition of “crimes” under the 5th Amendment.  “Treason, Bribery, and other High Crimes and misdemeanors” would seem to be the archetypal crimes covered under the 5th Amendment.  In fact, the Impeachment article doesn’t just talk about “crimes,” but “High Crimes.”  Therefore, the crimes that would satisfy an Impeachment charge surely fall within “crimes” as countenanced under the 5th Amendment.

Any President can clearly invoke the 5th Amendment in an Impeachment proceeding.  If so, then any president can surely invoke the 5th in a preliminary proceeding where his testimony will surely be used in the ultimate Impeachment proceeding.  Hence, Trump can surely invoke the 5th in any Mueller interrogation.  And, since Mueller doesn’t have any power to immunize President Trump against the use of that testimony in a future Congressional Impeachment, Trump can remain silent despite any Mueller proffer of what would be a meaningless “immunity.” 

If Trump remains silent, any attempt to interrogate him will ultimately prove legally fruitless, except for the political optics of President Trump “taking the 5th.”  Those optics might actually benefit President Trump given the plethora of overzealous actions the Mueller team has already displayed.

In conclusion, Mueller is both constitutionally and legally powerless to immunize President Trump from the criminal trial of a congressional impeachment when Mueller’s very goal of forcing President Trump to testify is to create the factual grounds for a criminal Congressional Impeachment.