The politics of the Trump-Russia investigation

This is a rush transcript from "Special Report with Bret Baier," May 2, 2018. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIPS)

RUDY GIULIANI, TRUMP ATTORNEY: I would think we need the summer for the direction we are going to go or if we are going in the direction of a subpoena battle, we are ready for that. We are representing an ordinary person. We're representing the president of the United States who is getting ready for what could be life and death, meaning life hopefully without nuclear weapons for North Korea. How can we take three or four hours or days out of that schedule to prepare him for a deposition when he should be preparing for North Korea?

ALAN DERSHOWITZ, CONSTITUTIONAL LAW EXPERT: I would take advantage of these questions and I would submit answers in writing to almost all of them and then make objections to others based on Article Two of the Constitution.

(END VIDEO CLIPS)

BRET BAIER, ANCHOR: Rudy Giuliani, the president's new attorney, speaking about possibly the conditions by which the president would sit down with Special Counsel Robert Mueller. There you hear Alan Dershowitz. Next time we're going to get Rudy Giuliani on a hardline. But it's interesting to see the movement in the legal team. Ty Cobb today saying he is out or on his way out, and on the way in, Emmet Flood who worked with the Clinton White House on the impeachment time and has a lot of experience in this area of dealing with depositions and special counsels.

Let's bring our panel: Matt Schlapp, contributor with The Hill; A.B. Stoddard, associate editor at Real Clear Politics and host of "No Labels Radio" on Sirius XM, and Jonah Goldberg, senior editor at National Review, and author of the new book "Suicide of the West" which debuted at number four on the "New York Times" bestseller list. Congratulations for that.

JONAH GOLDBERG, NATIONAL REVIEW: Thank you, thank you.

BAIER: Better to be on than not.

GOLDBERG: It is.

BAIER: Jonah, let me start with you. What about this shakeup and legal team? And what does it tell us?

GOLDBERG: I think it tells us first and foremost that the Trump White House is going to the mattresses. That they preparing for a real battle. I think that's why Giuliani came in. Emmet Flood, I talked to several prominent conservative lawyers today and they say he is the guy that you would want if you are trying to either fend off impeachment or have an impeachment fight, if you're going to the mattresses with the special council. And I think that's where the head space of the Trump administration is right now is this is getting to the final rounds.

And I think we saw this, I think it may be the case, that's also the case with Rod Rosenstein and the Mueller investigation, the comments we saw from Rod Rosenstein this week sounded like a guy who was thinking that he had every reason to do what he has done so far, which I think would put some fear in the White House.

BAIER: It seems like they are taking it seriously and staffing up, if you will, Matt. I will say that this legal change, the New York Times wrote a story back in March saying that there would be a shakeup in the legal team coming up. The president on March 11th tweeting "The New York Times purposely wrote a false story saying I'm unhappy with my legal team on the Russia case and I'm going to add another lawyer to help out. Wrong. I'm very happy with my lawyers, John Dowd, Ty Cobb, Jay Sekulow. They are doing a great job." Jay Sekulow is still there. Two of the others gone. Obviously timing is everything and tweets and everything else.

MATT SCHLAPP, THE HILL: First of all, there has been a lot of talk about does this mean Don McGahn as the White House counsel might be making an exit as well, but I think the opposite is true. I think they've made sure they put a team together. I agree with much of what Jonah said. They've put a team together for this real question, the separation of powers and this constitutional question of what does the president need to do when there is a counsel investigation like this?

And the next thing it seems obvious by the questions that we have all read about is that there seems to be no clear evidence of any collusion, but yet the questions seem to want to go to this question of, is firing James Comey, intervening with James Comey, is there something about that that is untoward or illegal? And for constitutional conservatives we know there is clear delineation between the separation of powers of the constitution, as they said, Article Two. And I think that's the case they're going to make. Maybe he answers questions in writing, maybe he doesn't answer any questions at all. Maybe this goes through a whole protracted legal process.

BAIER: Let's take another listen look to Rudy Giuliani in the cellar there on the cellphone about perjury trap fears.

(BEGIN VIDEO CLIP)

GIULIANI: The questions almost cry out that they don't have a case. They are desperate and they want to make a case. Look at how few questions if any about Russia. Wasn't it an investigation of Russian collusion? They lost that one. Not true. So now they are falling back to obstruction, which is not true either, and perjury, which is only true if you testify. And perjury can be in the mind's eye of the prosecutor, which is very dangerous.

(END VIDEO CLIP)

BAIER: So he is trying to set guidelines here and the limit, narrow the questions, narrow the time, A.B. But we don't know what we don't know from those questions. We don't know what Mueller has in previous interviews, who he has talked to and what he's trying to get out of those questions.

A.B. STODDARD, REAL CLEAR POLITICS: Matt and Rudy Giuliani are treating the list of questions that were leaked. And they weren't even the questions. They were notetaking that described the 49 questions that would be asked of the president in an interview as the final report from the Special Counsel. The Special Counsel doesn't have to reveal anything in those questions that you would ask President Trump in a deposition.

He actually brought up something new, which was the prospect of the Manafort campaign manager reaching out to the Russians, not being reached out to, reaching out himself. That's potentially new. He doesn't have to reveal anything that he knows in those questions. And the questions are broad enough that they open up new ones depending on the answer. He is not saying that there was collusion, he's not saying there's obstruction. He needs to know the mindset to determine whether or not there was corrupt intent, and that has a lot to do with obstruction.

But there is nothing in there that reveals that collusion has been ruled out at all. Half the town thinks Rudy Giuliani leaked those questions because, like Judge Napolitano and many others, including Ty Cobb today, people do not believe in any way that the special counsel leaked their own questions and it is the legal team that leaked the questions.

BAIER: For what purpose?

STODDARD: For the purpose of dissuading the president from talking to Bob Mueller, because of course he is going to mess up if he answers those 49 questions. He tells nine untruths a day now according to the Washington Post fact checker. If you were his lawyer, you would not let him do this.

BAIER: OK, here is a tweet that just came out within the past minutes -- three, actually, from the president. "This isn't some game. You are screwing with the work of the president of the United States." John Dowd, March 2018. With North Korea, China, the Middle East, so much more, there is not much time to be thinking about this especially since there was no Russian collusion." Bottom line, is he going to sit down?

GOLDBERG: I think it would be insane for his lawyers to let him do it, just -- whether the A.B. thesis on this or just simply that the recall issues alone I think are pretty daunting, and Mueller and those guys know how to ask follow up questions. And I split the baby on this. I don't think that the president can be impeached or indicted for constitutionally exercising his power in firing somebody. So I think some of the obstruction stuff doesn't fly constitutionally. But answer the wrong question about the collusion stuff with Manafort or with Roger Stone and he could be in huge trouble.

BAIER: The other thing is if he says he's not going to sit down and a subpoena comes from the Special Counsel, the Supreme Court has a history of siding with the Special Counsel.

SCHLAPP: We'll see what happens, right. This is not a special counsel statute. This is a question where the DOJ has actually picked a lawyer so it's different from some of those previous cases. And it could go through not the court of ultimate last result but other courts before that. So I would think the reason why Emmet Flood is being put on the team is that they are prepared to take all the legal steps. I still think he might give written answers to questions and he might not give any answers at all. And I don't think there's a question at all about who leaking them. I don't think that's what's important. The question is this -- the special counsel wants to get Donald Trump to come to talk to him because at that point, that's where he gets him on something.

BAIER: It's coming to a head on that front, but it could take months and months and months. If we have to go through all of this legal wrangling, you are talking about post-midterms.

SCHLAPP: That's right.

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