Former federal prosecutor says one of Trump's few options in the face of a grand-jury subpoena from Mueller could come at a hefty political cost

robert mueller

  • Special counsel Robert Mueller threatened President Donald Trump’s legal team with a subpoena, if Trump refused to sit for an interview with federal prosecutors.
  • Legal experts suggest that Trump’s only option in that scenario would be to plead the Fifth Amendment.

News of special counsel Robert Mueller’s threat issue a grand-jury subpoena to President Donald Trump if he refuses to testify to Mueller under oath has prompted some speculation about what options Trump might have if Mueller followed though on that threat.

Trump’s only viable solution might be to plead the Fifth Amendment, according to former federal prosecutor Renato Mariotti, who commented on the report Tuesday night.

“He has the absolute right to refuse to testify if his answers would tend to incriminate him, unless Mueller immunized him and he had no liability for committing state crimes,” Mariotti said on Twitter.

“Obviously taking the Fifth would have some political cost, so to avoid that cost, Trump could try to fight the subpoena in court,” Mariotti continued. “No sitting president has ever been subpoenaed to testify in a criminal proceeding, so there is no prior Supreme Court decision on the issue.”

Mariotti referenced the landmark case of United States v. Nixon in 1974, where the Supreme Court ruled that “no person, not even the president of the United States, is above the law,” and ordered President Richard Nixon to produce recordings and other subpoenaed materials during the Watergate scandal.

If Trump were to plead the Fifth Amendment, it may come at the cost of political capital and clout. As a presidential candidate, Trump has previously taunted people who plead the Fifth Amendment.

“The mob takes the Fifth,” Trump said in 2016, referencing several people who pleaded the Fifth Amendment during an investigation into Hillary Clinton’s use of private email servers during her time as secretary of state.

Trump asked at the time: “If you’re innocent, why are you taking the Fifth Amendment?”

Mariotti said the eventual outcome of what would likely be an “unprecedented” legal fight is anyone’s guess.

“No one can say for sure what would happen in the Supreme Court,” Mariotti said. “One thing is certain — the court fight would take months to play out, pushing out the date of Trump’s testimony, which could be helpful for political reasons.”

SEE ALSO: Mueller threatened to subpoena Trump if he refuses to talk to the special counsel under oath

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