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Panelist: Trump will take the fifth

CNN's Jeffrey Toobin and his former law professor, Alan Dershowitz, spar after Toobin offers his theory about how President Donald Trump will avoid answering questions from special counsel Robert Mueller.

Posted: May 2, 2018 2:46 PM
Updated: May 2, 2018 2:46 PM

What happens if Robert Mueller issues a subpoena for President Trump to testify in the Russia investigation? The experts disagree on what the President would do.

On CNN, Jeffrey Toobin predicted that Trump would take the Fifth, asserting his constitutional right not to be forced to be a witness against himself, and blast the entire investigation. Toobin's former professor, Alan Dershowitz, doesn't agree, citing the possible jeopardy it could place Trump in during potential impeachment proceedings.

The assumption among many commentators is that a subpoena poses a huge risk to President Trump and, just as importantly, to Republicans in 2018 and 2020.

President Bill Clinton, who had a pretty good sense of what was coming when he appeared before a grand jury, triggered an impeachment process through his statements about Monica Lewinsky. (Though even in that case, Democrats should remember that the impeachment process backfired politically by dragging down public support for the GOP.)

The view that a subpoena would create a moment of grave danger -- either with Trump looking guilty for not talking or placing himself in greater legal danger by getting caught in lies -- misses the way in which the President has been using the investigation to his own political advantage and envisions using it to embolden the Republican Party.

As much as he complains about Mueller, the investigation has become a pillar of Trump's larger narrative on what's wrong with Washington, and the forces he is up against. For all the Trump supporters who love him because he is a fighter, the Russia investigation has become the kind of perfect foil that fiction writers dream about.

This all started many months ago when Trump, a master storyteller, opened up a new front against the investigation. With everyone focused on whether he would fire Robert Mueller or Rod Rosenstein, Trump took a very different path. He focused his firepower on questioning the legitimacy of the entire probe.

With the support of many congressional Republicans, President Trump spun a story of an investigation driven by overzealous law enforcement officials in the so-called "Deep State" who were trying to overturn the outcome of the 2016 election.

By hook or by crook, he said, they were engaged in a "witch hunt" to bring him down from office. If President Trump was selling this version of his events on his own, it probably wouldn't have gained a strong hold on parts of the electorate. But the President is not riding solo.

With assistance from conservative media outlets like Fox News, which amplify what Trump says, and House Republicans like congressmen Devin Nunes and Mark Meadows, who have also lent support to this storyline, the plan has been working. A recent poll from Monmouth University found that a diminishing majority supports the continuation of the Mueller investigation (54%, down from 60% in March and 62% in July).

Another poll released in mid-April found that a majority of Republican voters don't feel that the investigation is fair. In other words, Trump's strategy is working.

Whether or not President Trump pleads the Fifth, his attacks on the investigation will continue and he would use a subpoena as further evidence that Mueller is a prosecutor run amok. On Wednesday morning, he tweeted: "There was no Collusion (it is a Hoax) and there is no Obstruction of Justice (that is a setup & trap)."

Ty Cobb, a lawyer who has expressed discomfort with Trump's attacks on Mueller's probe, according to a source who spoke to CNN, is leaving the White House, and Trump is hiring Emmet Flood, who represented Bill Clinton during his impeachment process.

He will use the high drama of this encounter as political theater, making himself the victim and fueling the message that will be front and center in the midterm campaigns -- elect a Democratic Congress and the next two years will be all about impeachment.

Democrats could easily find themselves -- and the news cycle -- swamped by stories about the Mueller investigation rather than about what their party has to offer voters. In a short-attention-span nation where many might be feeling a certain amount of fatigue from this issue, it could be a problem for Democrats if this is the main story for too long going into the midterm season.

Those who predict that the confrontation with Mueller could be devastating -- setting up a dangerous clash between the President's "truthiness" problem and the stringent requirements of the law -- downplay how much of the investigation really depends on politics, not law.

And within the partisan world that we live, President Trump will likely continue to be successful at handling the politics of the investigation in this manner, even turning it to his advantage and into a potential rallying point for Republicans in the midterms.

If there is major progress toward a peace agreement in Korea, the President's strategy might be even be more potent and help generate some of the excitement among Republican voters that has been absent.

When it comes to discussion of the Russia investigation, the legal analysis needs to be supplemented by political analysis. After all, the most likely arena where this will all be resolved is in Congress and by the electorate. President Trump seems to have a strategy and it might very well be working.

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