Judge Andrew Napolitano dispensed some free legal advice during a Thursday taping of Fox and Friends — and President Donald Trump would be wise to consider this guidance.
The former New Jersey magistrate and Fox News senior judicial analyst told Trump to be wary regarding Special Counsel Robert Mueller’s recent disclosure that the president was not a “criminal target” of his investigation. This could simply be a ploy to give Trump “a false sense of security,” Napolitano warned.
Give no quarter
“Judge Nap” was referring to a Washington Post story from Tuesday which claims that Trump is a “subject” of [Mueller’s] investigation into Russian meddling in the 2016 presidential race, but not a “criminal target.” However, reporters from the Post explained the distinction:
Prosecutors view someone as a subject when that person has engaged in conduct that is under investigation but there is not sufficient evidence to bring charges.
In addition to the ongoing investigation, two people familiar with the special counsel’s probe revealed that Mueller is preparing a report about Trump’s actions while in office, as well as details regarding “potential obstruction of justice.” This latter admission may refer to when Trump fired former FBI Director James Comey under controversial circumstances.
Although proving that Trump obstructed justice comes with numerous legal hurdles and may be difficult to prove, the president shouldn’t be brimming with confidence merely because prosecutors are refusing to make any acute criminal accusations.
“As much as I want the president to be able to be president and not have this on his back,” Napolitano said. “I encourage him not to relax and not to rejoice. They are still pursuing things.”
The conversation regarding Trump’s legal standing reportedly occurred during special counsel negotiations with the executive counsel about a possible interview with the president. Trump has demonstrated a willingness to sit down with Mueller and, under oath, take part in recorded interviews. He communicated his desire to testify to the White House press pool in March:
Napolitano gave hints on how the special counsel might proceed in an op-ed accompanying his Fox and Friends appearance. He outlined “three areas of potential criminal behavior” that Mueller is likely pursuing: collusion, obstruction of justice, and Trump’s pre-presidential finances.
To prove collusion, Napolitano contends that the special counsel must prove that there was “an agreement by campaign officials to accept something of value from a foreign person, entity or government.” The criminal behavior is in agreeing to an arrangement, and nothing — including Hillary Clinton’s emails — has to actually be delivered.
When determining if Trump committed obstruction of justice, wrote Napolitano, prosecutors must determine if “FBI Director James Comey was fired because Trump couldn’t work with him or because he was hot on the president’s trail and Trump wanted to impede that.”
Finally, in regard to Trump’s financial dealings from before he entered the White House, Napolitano believes that potentially damning evidence found its way to Mueller from the FBI or from cooperating witnesses. In either case, these charges bear little resemblance to the Justice Department’s orders authorizing the special counsel investigation.
Given what is at stake, Trump would be wise to listen closely to the unsolicited advice of a friendly legal expert like Napolitano. Even if the special counsel is only a “fishing expedition” mustered purely for political gain, the president should avoid the legal entrapment that is surely coming from this partisan witch hunt.