On Thursday morning, Fox News contributor Judge Andrew Napolitano told Fox News Channel show hosts that if President Donald Trump is subpoenaed by a grand jury in the investigation led by Special Counsel Robert Mueller, the president should plead the 5th Amendment protection against self-incrimination, even while doing so would be “politically catastrophic.” Napolitano, a former federal judge, said that if Special Counsel Mueller can induce the president to talk, Mueller would then have “an opportunity to trip him up.”
Napolitano continued, saying, “They tripped up George Papadopoulos, they tripped up Mike Flynn.” Napolitano pointed out that Trump’s jeopardy stems from facing a Special Counsel who has facts unknown to the president. “He doesn’t know what they know about him, he doesn’t know what others have said under oath about him,” Napolitano said. “It is very easy for them to trip him up and get him to say something that is contradictory to what he already said.”
On Wednesday night, Trump said before leaving Washington to attend the World Economic Forum in Switzerland that he is “looking forward” to speaking with Mueller, under oath. "I am looking forward to it, actually," Trump said. "Here is the story: There has been no collusion whatsoever. There is no obstruction whatsoever," Trump said. When asked whether he would speak to Mueller under oath, the president said, "I would do it." He added, "I would do it under oath, yeah."
When Fox News Channel’s Ainsley Earhardt asked whether it was “smart” for Trump to testify, Napolitano answered, “His attorneys have been saying they want him to do it because he says he wants to do it.” Napolitano added, “I just hope that they don’t because this is a very, very dangerous environment.”
Napolitano also indicated that interviewing Trump may also be dangerous for Special Counsel Mueller. Speaking to Bill Hemmer, host of Fox News Channel's "America's Newsroom," Napolitano said, “That’s also dangerous for Bob Mueller because he does not know what the president is going to say to the grand jury. Remember, the grand jury meets in secret. The president’s lawyers cannot be there. Just the president as the witness will be there and Bob Mueller and his team interrogating him,” Napolitano said. “Prosecutors don’t like to put somebody on before a grand jury without knowing ahead of time what they’re going to say. “[Trump] could go on for an hour in an answer if he wanted to.”
Show host Hemmer played a clip of noted Constitution scholar Alan Dershowitz discussing the Mueller investigation. The former Harvard professor said, “If the president were to be charged with obstruction or simply exercising his constitutional authority, firing Comey, telling Comey not to investigate Flynn, those are all within the president’s constitutional authority,” Dershowitz said. “The other place it may be going is toward collusion. Collusion is not a crime. I would think that the special prosecutor should limit himself to matters that are criminal, and thus far, I have not heard evidence to suggest that any crimes were committed in or near the oval office.”
When Hemmer asked for a response, Napolitano did not entirely agree with Desrhowitz but said if the president has a "legitimate” reason for his actions then he did not obstruct justice. “Obstruction of justice needs to be for a corrupt purpose. If it’s for a good purpose, like reallocating resources, and the president is the chief law enforcement officer of the land, it’s absolutely not criminal,” Napolitano said. “But if it’s for a corrupt purpose like protecting himself from the revelation of the truth, then that’s obstruction of justice.”