It has been settled law for some time that the president is subject to judicial process in appropriate circumstances.

Presidents from Richard Nixon to Bill Clinton have unsuccessfully opposed subpoenas in the past. It would be a first if the president were subpoenaed for testimony about his alleged involvement with criminal activity. For now, there is enough guidance from prior cases to conclude the Mueller team could force the testimony of the president.

Trump’s lawyers surely hope they can avoid that. But the alternative isn’t much better.

If Trump is forced to testify, his lawyers must undertake the most important witness preparation of their careers.

Trump is what lawyers would call a “difficult” client to prepare for testimony for several reasons:

First, he thinks he did nothing wrong.

Second, his business empire is so vast, and his dealings so spread out, he may have forgotten or never known things that he might be expected to know by prosecutors and his lawyers. Investigators by now have already formed an opinion about what he does or should know, and they’re not likely to be persuaded otherwise.

Third, and probably the most dangerous, Trump is often combative when questioned. Witnesses need to understand that answering a prosecutor’s questions under oath is not a fair fight. The rules are slanted heavily against the witness and in favor of the questioner. Witnesses who try to “win” the argument while testifying at trial or before the grand jury find that any victory is Pyrrhic, at best.

Even the best-prepared witness can sometimes go rogue testifying before a grand jury. And the defense attorneys wouldn’t even know, because counsel is not allowed in the room.

In theory, the president could be instructed by counsel beforehand to refuse to answer questions. In the normal case, if the client has any exposure, he should invoke the Fifth Amendment. In Trump’s case, if the public learns the president refused to answer questions before a grand jury, the political implications could be devastating.

Instead of attempting to force the president to testify, Mueller could allow Trump to meet with investigators in a conference room for an informal interview. Informal interviews are just as dangerous as grand jury testimony in that false statements by Trump can be prosecuted, even though they are not made under oath like a grand jury appearance.

In reality, it’s the least informal interview in the history of interviews. Assistant U.S. Attorneys and any number of agents will be lined up in a show of force on one side of a long conference room table, with reams of documents and folders. With the president and his counsel on the other side, the special counsel’s team will ask as many questions as it possibly can, studying everything Trump says and does.

At an informal interview, the Mueller team will be evaluating Trump’s body language when he answers questions. Federal investigators consider themselves experienced body language interpreters. That’s mostly true, but confirmation bias also plays a part when trying to read someone’s tics and tells.

Most importantly, a “false statement” is measured against the “truth.” There’s a big assumption that the truth is the same thing as whatever the conclusions the Mueller team has reached as a result of its investigation.

If, for example, the investigators have adopted as fact information supplied by, say, George Papadopoulos or Michael Flynn, anything Trump says that counters that Papadopoulos/Flynn “fact” becomes “false.” On the other hand, it’s fair to expect the Mueller team has corroborated, fact-checked and backed up its conclusions.

If Trump’s lawyers can get the special prosecutor to agree to letting the president provide written answers to questions, it would be nothing short of a miracle. Realistically, it’s not going to happen. No federal investigation of this size and importance would accept written, heavily-edited responses in lieu of an interview or testimony.

Trump’s legal team likely wants to avoid his testimony. They likely also want to avoid an interview.

There’s one more option: Trump could flat-out refuse to talk to Mueller in any way and refuse a grand jury subpoena.

If that happened, the federal courts would surely be called upon to decide whether the president can be compelled to testify in a criminal matter like this.

Federal courts have a long history of resolving contentious disputes between the branches of the federal government, which would presumably include this kind of largely intra-branch dispute. The Supreme Court in United States v. Nixon long ago recognized that the constitutional need for relevant evidence in criminal cases can overpower the president’s claim of executive privilege. A federal court would likely order him to appear.

What if Trump ignores a federal court order?

There’s historical precedent: Presidents Andrew Jackson and Abraham Lincoln arguably defied or ignored federal court orders.

And there really isn’t a lot the federal judiciary could do to physically force the president to comply. What it could do is find him in contempt. Trump could try to ignore that, too.

Whether the president could even be held in criminal contempt is not as important as the fact that criminal contempt is undoubtedly a high (official) crime or misdemeanor — itself an impeachable offense.

Danny Cevallos is an MSNBC legal analyst. Follow @CevallosLaw on Twitter.

Share and Enjoy

Larry Nassar sentenced to 40 to 125 years in Eaton County

10:52 AM ET

• Facebook
• Twitter
• Facebook Messenger
• Pinterest
• Email
• print
• comment

CHARLOTTE, Mich. — There were silent hugs and quiet tears in the gallery of an Eaton County courtroom Monday morning as convicted sexual predator Larry Nassar spent what will likely be his final seconds in a public setting with his head down and hands folded in his lap. Minutes earlier, Nassar told a room full of some of the women he manipulated and abused that their words would stay with him in prison for the rest of his life.

Lawyer doubts number of Nassar assaults

Shannon Smith, the defense attorney for Larry Nassar, told WWJ Newsradio on Thursday that she doesn’t believe her client is capable of sexually assaulting all of the women who have accused him of doing so.

Judge Janice Cunningham sentenced Nassar to a minimum of 40 years and a maximum of 125 years for his crimes in Eaton County. Her sentence was the third and final punishment Nassar will receive in criminal court. The former Michigan State and USA Gymnastics team doctor spent the last several weeks in Michigan courtrooms listening to some of the hundreds of women who say he used his notoriety and authority as a famous physician to sexually abuse them over the last 25 years.

“The words expressed by everyone that has spoken including the parents have impacted me to my innermost soul,” Nassar said, reading from a slip of paper that he kept tucked in a breast pocket of his orange prison jumpsuit. “With that being said, I understand and acknowledge that it pales in comparison to the pain, trauma and emotions you all feel.”

Cunningham said that her sentence was meant to protect society from Nassar in the future and also serve as a deterrent to any others who would think to use their positions of power to gain and exploit trust for their own personal pleasure. She told the former doctor that the pain he caused to his victims and their families spanned the world and was “incomprehensible.” She thanked the women and girls who provided impact statements in court and told them that while their emotional and physical pain might continue, their words helped put an end to Nassar’s criminal proceedings and were heard around the world.

“Their stories are not redundant even though many descriptions of the grooming by the defendant are eerily similar,” Cunningham said. “… Each voice and each story does make a difference.”

Nassar pleaded guilty to 10 counts of criminal sexual conduct in November. Seven of those counts came from crimes in Ingham County, where Michigan State and Nassar’s former clinic are located. The other three came in Eaton County, where Nassar lived and frequently treated young gymnasts at the youth club Twistars.

Judge Rosemarie Aquilina sentenced him to up to 175 years in state prison during a hearing in Ingham County two weeks ago. A federal judge sentenced Nassar to 60 years in federal prison on child pornography charges in December. The clock on his state prison time begins when his federal sentence expires, and the Ingham and Eaton County sentences run concurrently. Nassar, 54, would not be eligible for parole until the year 2117.

Monday’s hearing was the 10th combined day in court for Nassar on his state charges in the past three weeks. During that time, 204 different individual provided impact statements to Cunningham and Aquilina.

While Nassar’s federal sentence was already likely to keep him behind bars for the remainder of his natural life, prosecutors said providing a forum for the women who say Nassar abused them to confront him and tell their stories in court was an important part of the plea deal they negotiated with the disgraced doctor’s attorneys.

“I truly believe we have seen the worst of humanity in these past few weeks. And we’ve also seen the best. We have seen how one voice can start a movement, how a reckoning can become justice,” assistant attorney general Angela Povilaitis said.

The one voice Povilaitis referenced was that of Rachael Denhollander, the first woman to publicly accused Nassar of sexual abuse in a 2016 article in the Indianapolis Star. Denhollander’s story, and her ensuing complaint to police, were the catalyst for Nassar’s downfall. She was the final woman to provide an impact statement on Friday. Denhollander asked the judge: “How much is a little girl worth?” She told Judge Cunningham that Monday would be her opportunity to answer that question by using the full weight of the law against Nassar.

“Tell them they are worth everything. Tell them they are seen. Tell them they are heard. Tell them they matter,” Denhollander said. “May the rest of the world begin to live out that answer as well.”

Many of the speakers in court during the past several weeks used their time to demand accountability from the people and institutions they say could have stopped Nassar sooner. Michigan State, USA Gymnastics and the U.S. Olympic Committee are among the co-defendants in civil lawsuits that more than 200 women have filed regarding Nassar’s abuse.

More than a dozen girls and women say they told an authority figure about Nassar’s inappropriate behavior at some point before his arrest in September 2016. Larissa Boyce, a former youth gymnast, says she told Michigan State coach Kathie Klages in 1997 that Nassar had touched her inappropriately.

Boyce was one of the final women to address the court in a statement made Friday afternoon. She asked anyone who enabled Nassar to prey on young women for as long as he did to come forward and explain how that happened.

“You have a second chance to do the right thing,” Boyce said. “I hope and pray you can be transparent and willing to admit you missed this. Teach our country and the world how you missed this. Own up to your mistakes. I believe there is an opportunity for you to stand up and redeem these mistakes by doing the right thing now.”

The Michigan attorney general’s office is also conducting a broad, sweeping investigation into the handling of sexual assault on Michigan State’s campus to find out if and when others at the university could have done more to stop Nassar. Attorney general Bill Schuette assigned special counsel Bill Forsythe to lead the investigation.

“No department and no individual at Michigan State is off-limits,” Schuette said.

Denhollander and Boyce both said Monday’s proceedings came as a relief after a few long weeks in court and much longer years waiting to see Nassar brought to justice.

“I felt like a weight was lifted off of me,” Boyce said. “Finally I don’t have to face him in court anymore. It’s almost like this chapter is coming to a close in a way.”

Share and Enjoy