(CNSNews.com) - Former U.S. attorney Joe DiGenova told “Fox News Sunday” that it is unconstitutional and illegal to use a grand jury subpoena to compel testimony from President Donald Trump about the “official act” of firing then-FBI Director James Comey.
“A use of a grand jury subpoena to get testimony from a president about the official act of firing the FBI director is unconstitutional, illegal, and the president should fight it all the way to the Supreme Court,” DiGenova said.
Fox News host Chris Wallace showed video of Trump telling reporters that he knew nothing about the $130,000 payment that Trump’s lawyer Michael Cohen made to porn star Stormy Daniels prior to Trump’s current lawyer Rudy Giuliani contradicting Trump by saying Trump didn’t know the specifics about the money but “did know about the general arrangement that Michael would take care of things like this.”
Giuliani followed up by saying Trump repaid Cohen by keeping him on the payroll at a time when he was doing no work for the president.
When asked how damaging it was to Trump and his political support, DiGenova said, “It’s not damaging at all because in fact, the people realize that this part of the investigation is why the whole thing is off track. Under Article II -- this relates to what [former White House special counsel during the Clinton administration] Lanny [Davis] was saying earlier, the reason Mueller wants to talk to the president is not to investigate a crime. It's to send a report to the deputy attorney general for impeachment.”
DiGenova said Cohen’s payment to Daniels was legal.
“It was for personal reasons to protect the family, and I think discussion of it serves really no useful purpose in terms of the facts of it, but as far as I'm concerned, it's a nothing burger,” he said.
DiGenova said it’s not hard to argue that the payment to Daniels wasn’t a campaign expenditure, because it was a for a personal matter.
“In fact, the law on this is pretty clear, that if it's a purely personal matter, which this clearly has to be, it doesn't matter what its relationship was to the timetable in a campaign, but let me just say as well to something Lanny said, a lawyer cannot waive attorney-client privilege. Only the client can waive the attorney-client privilege. So, whatever Rudy may have said, he didn't waive the attorney-client privilege for the president of the United States,” he said.
When asked if Giuliani will have to be replaced, Davis said, “I think there's at least an argument that by speaking publicly about a conversation with the president, he becomes a fact witness on a crucial question, was the personal loan that now President Trump admits that he gave to Michael Cohen, and was reimbursing Michael Cohen, is a word that Rudy Giuliani used, that's a fact that needs to be questioned in front of a grand jury on the issue of whether it was a political.”
“I do not believe that Mr. Giuliani is going to get a subpoena from anybody, and if they do, I think it's one -- it's another example of how this process is completely out of control. That is not to say that someone, a private lawyer representing a litigant might not try to do that, but I think it will be remarkably unsuccessful,” DiGenova said.
Judge T.S. Ellis last week questioned whether Mueller overstepped his authority in the case against former Trump campaign manager Paul Manafort.
“Judge Ellis did something very important on Friday. He started a national civics lesson about what the Constitution is about and about what the powers of the special counsel are,” DiGenova said.
Judge Ellis may very well not dismiss the case, but he could also exclude from evidence anything seized in that outrageous rate of Paul Manafort's house at 3:00 in the morning, taking Mr. Manafort and his wife out of bed in their nightclothes, handcuffing Mrs. Manafort -- I mean, outrageous conduct in a case that is as absolutely no significance,” he said.
“Bob Mueller should be ashamed of himself to allow that to happen on his watch. The answer is the judge probably won't dismiss the case, but he may very well exclude all the evidence from that raid,” DiGenova added.