Dark Side
Trump lawyers turn to controversial 1994 Espy investigation that could provide cover in Russia probe
By David Jackson and Kevin Johnson, USA TODAY, Jan. 11, 2018
Jan 12, 2018 - 2:37:41 PM

WASHINGTON – President Trump's lawyers are closely examining a 24-year-old investigation of former Agriculture Secretary Mike Espy as they negotiate the terms of the president's possible interview with Russia special counsel Robert Mueller's team and related requests for White House documents, three officials familiar with the matter said.

Trump's legal team is in early talks with federal investigators about a possible interview with the president related to the wide-ranging investigation into Russia's election interference and possible collusion with Trump associates. Mueller's team is also investigating whether the president tried to obstruct justice in the Russia probe.

As the Trump legal team negotiates the scope of the possible interview, the contentious 1994 independent counsel investigation of Espy has become a roadmap for their discussions, according to the officials, who were not authorized to speak on the record about preliminary talks with the special counsel's office.

The high-profile Espy case featured a protracted battle over White House documents and was a legal test over how far presidential privilege could extend when potential crimes are at stake. And it could have implications for some of the most sensitive aspects of Mueller's inquiry, including the examination into possible obstruction of justice related to the abrupt dismissal of former FBI director James Comey and former national security adviser Michael Flynn.

In the Espy case, an appellate court concluded that the Clinton White House's claim of presidential privilege – the central argument for withholding dozens of documents prosecutors requested – was sound.

The court ruled that the White House's request to keep some documents private not only applied to direct communications involving the president – but extended to his advisers as they gathered information to inform the commander-in-chief about the potential legal jeopardy facing his Agriculture secretary at the time.

Espy was eventually acquitted of corruption charges related to his acceptance of travel and other gifts, and the court ruling helped provide political and legal cover for the Clinton administration.

Trump has declined to commit to a meeting with Mueller, claiming as recently as Wednesday that his testimony isn't necessary for an investigation that he characterized as a "Democrat hoax."

"Certainly, I'll see what happens," Trump said after a meeting with Norway's prime minister. "When...nobody's found any collusion at any level, it seems unlikely that you'd even have an interview." This is in contrast to Trump's comments in June, when he said that he would provide sworn testimony if asked.

Two of the officials are now saying the "Espy standard" should apply to not just to document demands but to any other evidence prosecutors seek from the president, including testimony.

Trump's testimony about the Comey and Flynn firings could be key for Mueller's investigation.

The Trump White House originally said it dismissed Comey in May on the recommendation of Justice Department leadership, because of his controversial handling of the investigation into Hillary Clinton's use of a private email server when she was secretary of State. Days later, Trump said in a television interview that the Russia investigation was indeed on his mind when he fired Comey – and that he would have made the decision regardless of Justice's recommendations.

Comey, after he was dismissed from the White House, testified that Trump pressured him to drop part the investigation into Flynn in a private dinner in February.

Last month, Flynn pleaded guilty to lying to the FBI about his contacts with Russia Ambassador Sergey Kislyak, and agreed to cooperate with the continuing federal investigation. Flynn is one of four former Trump campaign officials to face criminal charges in Mueller's inquiry.

If Espy case is any guide, the path toward any cooperation between Mueller's team and the Trump White House could be long and equally contentious.

Donald Smaltz, the independent counsel who oversaw the Espy inquiry, declined to comment. But a final report of his work detailed a legal battle that continued even after Espy was indicted. The indictment prompted the White House to argue at one point that the documents were no longer needed because charges had been filed.

The fight lasted more than 41 months after the White House received the initial grand jury subpoena. Ultimately, according to the Smaltz report, the White House produced many, but not all of the documents.

White House Press Secretary Sarah Sanders declined to comment on the specifics of talks between Trump lawyers and Mueller's office, but said the president's team will be fully cooperative.

"The president and his personal attorneys are going to discuss this matter with the Office of the Special Counsel, not reporters," Sanders said. "And that will be the process that we follow."