Mueller Has Donald Trump In An Impossible Situation, And A Potential Perjury Trap
When it comes to a potential interview with Robert Mueller, President Trump faces risks no matter what form that interview takes.
As I noted yesterday, The New York Times got its hands on what appears to be a list of the potential questions that Special Counsel Robert Mueller would like to ask President Trump in the event that he agrees to an interview. Today Times reporter Charlie Savage notes that, based on these questions, agreeing to an interview would be a minefield for Trump:
WASHINGTON — President Trump has insisted he is eager to make the case to the special counsel, Robert S. Mueller III, that he has done nothing wrong. But the questions that Mr. Mueller wants to ask show why the president’s lawyers have countered that an interview would be a minefield for Mr. Trump.
It is not just that the president has a history of telling demonstrable falsehoods, while the special counsel has already won four guilty pleas for the crime of lying to investigators. The questions would pose additional challenges for Mr. Trump, legal experts said.
Many of Mr. Mueller’s questions, obtained and published by The New York Times, are so broad that Mr. Trump would need a detailed command of a range of issues. And, complicating efforts to try to adequately prepare him for such an encounter, the president’s lawyers do not know everything that the special counsel has learned.
“This list reinforces the notion that the president should not go in for an interview with Mueller,” said Sol Wisenberg, a white-collar defense lawyer who was a deputy independent counsel in the Whitewater investigation. “Mueller knows all kinds of things — we don’t know exactly what he knows — and these are both broad and detailed questions, making real land mines.”
On Tuesday, Mr. Trump denounced the publication of the questions in a pair of Twitter posts. He called it “disgraceful” and again pronounced Mr. Mueller’s investigation a “witch hunt.” He also incorrectly declared both that none of the questions were about “collusion” — in fact, many centered on his campaign’s ties to Russia — and that it would be “hard to obstruct justice for a crime that never happened.” (Efforts to obstruct an investigation can be prosecuted even if no underlying crime is found.)
One major threat to Mr. Trump posed by such open-ended questions is that, as his Twitter diatribe showed, he has a history of saying things that are not true — especially when he rambles off the cuff. It is a felony to lie to law enforcement officials or to conceal a material fact during a proceeding like a formal interview.
Moreover, the list of questions is most likely a starting point for follow-ups as investigators try to iron out ambiguities. Paul Rosenzweig, another former Whitewater prosecutor and a senior fellow at the R Street Institute, a conservative and libertarian research organization, said they could be seeking such details as: What was the source of your knowledge? When did you find out? Who told you and what exactly did they say?
“You don’t just ask, ‘What did you know about the Trump Tower meeting?’ and he tells you the answer,” Mr. Rosenzweig said. “With 48 questions like that, that’s honestly a two-day interview. That’s 12 hours of questioning.”
And in part because former Trump associates who have pleaded guilty are cooperating with the inquiry, the White House does not know what evidence the special counsel has obtained that could contradict Mr. Trump, Mr. Wisenberg said. Because of that, he said, the president’s lawyers were in a worse position to prepare their client for an interview than President Bill Clinton’s team was in the Whitewater investigation.
“It’s totally different than when President Clinton came into the grand jury room to talk to us,” he said. “He pretty much knew everything we knew. It was far less risky.”
Even so, Mr. Clinton perjured himself by falsely denying that he had had a sexual affair with Monica Lewinsky. That became part of the referral to Congress by Kenneth W. Starr, the independent counsel, that led to Mr. Clinton’s impeachment.
As part of those proceedings, the videotape of Mr. Clinton’s false testimony became public, taking its place in his legacy. It is far from clear, however, that any transcript or recording of Mr. Trump’s interview — if he gives one — would similarly become public. Mr. Rosenzweig said the interview would be covered by investigative secrecy rules, and there was no clear mechanism for it to be disclosed under Mr. Mueller, who has less power than Mr. Starr enjoyed.
Mr. Mueller’s authorities remain uncertain; it is not clear that he could charge Mr. Trump with a crime or send an impeachment referral report directly to Congress. That has left his potential endgame unclear if he does conclude the president committed some kind of wrongdoing.
But the list of questions indicates that the investigation remains a significant threat to Mr. Trump even if he were to be honest about everything in any interview.
The biggest liability that Trump faces in a potential interview with Mueller, of course, is the fact that he’s Donald Trump. As we’ve seen since he became a candidate for President, and indeed long before then, Trump has a long-standing tendency to speak off the top of his head and to ramble on in response to questions in a manner that should worry his attorneys and advisers regarding the wisdom of agreeing to any kind of interview with Mueller and his team. That tendency is largely what drives his Twitter habit, and can also be seen in everything from the largely extemporaneous speeches he gives at the campaign-style rallies he continues to enjoy holding and in the interviews he grants to the news media, such as the extended phone interview he took part in on Fox And Friends just last week. Questioning a potential target like that is something that prosecutors and investigators long for, because people who speak in this manner tend to provide far more information than they need to in response to investigators and because it often leads to situations where they end up either contradicting things they’ve said in the past or evidence that the investigators have access to that the witness doesn’t know about. That, of course, leaves the person being questioned in danger of being charged with lying to a Federal official, which is a felony.
This is the main reason why Trump’s legal team is likely working behind the scenes to limit both the scope and the length of any questioning that they might agree to, and why Mueller is likely pushing back to make both the scope and length as long as possible in order to cover all the subject areas he’s interested in covering. Some observers have suggested that Trump may decide not to cooperate at all, or to propose the alternative of providing written answers to written questions. Mueller would likely object to the second option since it would preclude the possibility of follow-up questions, or of assessing the potential effectiveness of Trump as a witness in a future proceeding. The final option, of course, would be that Trump’s team could decide not to cooperate at all, but as Mueller himself apparently reminded them recently, that leaves open the possibility of a subpoena that would require Trump to testify before one of the two Grand Juries that Mueller has convened in this matter:
In a tense meeting in early March with special counsel Robert S. Mueller III, President Trump’s lawyers insisted he had no obligation to talk with federal investigators probing Russia’s interference in the 2016 presidential campaign.
But Mueller responded that he had another option if Trump declined: He could issue a subpoena for the president to appear before a grand jury, according to four people familiar with the encounter.
Mueller’s warning — the first time he is known to have mentioned a possible subpoena to Trump’s legal team — spurred a sharp retort from John Dowd, then the president’s lead lawyer.
“This isn’t some game,” Dowd said, according to two people with knowledge of his comments. “You are screwing with the work of the president of the United States.”
The flare-up set in motion weeks of turmoil among Trump’s attorneys as they debated how to deal with the special counsel’s request for an interview, a dispute that ultimately led to Dowd’s resignation.
In the wake of the testy March 5 meeting, Mueller’s team agreed to provide the president’s lawyers with more specific information about the subjects that prosecutors wished to discuss with the president. With those details in hand, Trump lawyer Jay Sekulow compiled a list of 49 questions that the team believed the president would be asked, according to three of the four people, who spoke on the condition of anonymity because they were not authorized to talk publicly. The New York Times first reported the existence of the list.
The biggest disadvantage of a subpoena over a voluntary interview is the fact that, in the former case the witness in question would be subpoenaed to appear before a Grand Jury. In that situation, they would not be in the Grand Jury room alone with the presiding prosecutors and the members of the Grand Jury. The witnesses attorneys would not be allowed in the room, they could not prevent the prosecutor from asking questions via an objection or another legal maneuver, and they would not be able to halt their client from rambling on in response to questions in a manner that could end up incriminating them or leading them to provide false or misleading responses to question. For someone like Trump, this is clearly a more dangerous situation than an interview with Mueller and his investigators at which his attorneys would be present to assist him. As such, it’s a situation that Trump’s attorneys would most likely want to avoid.
The biggest question from a legal point of view that a subpoena would raise, of course, is whether or not a sitting President can be subpoenaed to testify. Originally, Whitewater prosecutor Ken Starr had subpoenaed President Bill Clinton to testify before the Grand Jury he had convened, but he agreed to withdraw the subpoena after Clinton agreed to appear voluntarily. Therefore, the legal question of whether or not Clinton could be subpoenaed was never ruled on by a Court. While this would be a case of first impression, though, it seems clear that the best authority is on the side of the idea that a President can be subpoenaed.
The most favorable precedent from Mueller’s point of view, of course, would be United States v. Nixon, which dealt with the efforts of Watergate Special Prosecutor Leon Jaworski to subpoena the tape recordings that Nixon had made of conversations in the Oval Office that included conversations he had with top aides regarding the Administration’s response to the Watergate break-in. Jaworski had subpoenaed these tapes shortly after John Dean confirmed to the Watergate committee that there was a recording system in the Oval Office. Initially, the Nixon Administration resisted the subpoena, citing executive privilege among other grounds for withholding the requested tapes. In an expedited ruling, the Supreme Court ruled unanimously, with Justice Rehnquist recusing himself due to his previous position in the Justice Department, that Nixon must turn over the tapes. This, of course, led to the revelation of conversations so incriminating that they made Nixon’s impeachment and removal from office a virtual inevitability. Instead of facing that fate, Nixon resigned.
Given the Nixon precedent, it seems fairly clear to me at least that Trump would be on the losing side of a legal fight over the validity of any potential subpoena. If Oval Office tapes can be subpoenaed then there doesn’t seem to be any reason why the President himself can be subpoenaed to testify as a witness. Of course, if the Russia investigation heads down this path it would like mean months of litigation in the Federal Courts and, ultimately a decision by the Supreme Court. While anything is possible and the makeup of the Court has changed significantly from what it was in 1974 I don’t think that even this court would be willing to ignore the Nixon precedent. For that reason alone, I suspect that eventually, Trump will agree to some kind of interview with Mueller at which his lawyers can be present, but it’s likely to take both sides some time to come to terms on what kind of interview that’s going to be.