Let’s cut to the chase: Donald Trump should not agree to be interviewed by Special Counsel Robert Mueller — and President Trump should not even be asked.
See, there are two Trumps to consider here. There is the very eccentric and volatile man who is the subject of Mueller’s amorphous investigation. And there is the president of the United States, who has responsibilities to that vital public office. Here, the interests of both happen to align.
We’ll first examine Trump the man. No long history lesson is required here; let’s just take the last couple of weeks. Trump told a room full of lawmakers that he’d sign whatever immigration legislation they brought him — everything was negotiable. When senior legislators from both parties brought him the familiar Washington plan of amnesty now, security maybe someday, he said no way, no wall, no deal.
The eight-dimensional-chess explanation is that Trump realizes his supporters will never hold him to his commitments, so he makes bad ones in order to expose his opponents’ extremism. My preferred explanation is that Trump didn’t care what he said to lawmakers in the first meeting; his purpose was to refute Michael Wolff’s Fire and Fury depiction of a demented doofus by appearing engaged and in command. Either way, the point is that Trump says stuff. And then he says other stuff. Quite often, the other stuff doesn’t match up with the first stuff.
Take this week’s sensational non-story: In June, Trump ordered his White House counsel, Don McGahn, to fire Special Counsel Robert Mueller, which McGahn refused to do . . . so Trump dropped the idea and took no action.
There is no reason to doubt the veracity of the story produced by two veteran New York Times reporters, Michael S. Schmidt and Maggie Haberman. They have four sources who, though anonymous, appear well-placed (likely drawn from current and former White House staff, lawyers representing such witnesses, and Mueller’s investigators). And their account has the ring of truth: Trump, like all of us, longs to do things within his power that it would please him to do, but that would be really stupid to do, and so in the end he refrains from doing them. More idiosyncratically, Trump is torn between his brash persona (“You’re fired!”) and his real self (though wont to browbeat, he shrinks from personally delivering the pink slip, having subordinates do that dirty work).
More importantly, the Times report is harmless in its substance.
A decision is not made until it is finally made. Trump still hasn’t fired Mueller. He may periodically rant about doing it, but he hasn’t done it. Had he wanted to do it back in June, as the report indicates, he could have pressed the matter with McGahn, directed his chief of staff to handle it, ordered the deputy attorney general to do it, or done it himself, firing any middlemen who declined to carry out his instructions. But he didn’t fire anyone. Plainly, he realized that the fall-out would be far, far worse than the fleeting satisfaction of removing the pebble in his shoe that is Mueller.
Moreover, a president does not obstruct justice by merely firing a subordinate, which he has the incontestable constitutional authority to do. Of course, if there is concrete evidence that a crime has been committed, and if the president engages in criminal conduct to cover it up (e.g., bribing witnesses or suborning perjury), Congress could well decide that firing the prosecutor is a corrupt, impeachable offense. But if there has been no crime, and if a president believes the deleterious effects of an investigation on his capacity to govern outweigh the political damage from terminating the prosecutor, that is a reasonable choice to make — under circumstances in which, as a matter of constitutional law, the president does not need a reason at all.
Since firing the prosecutor would not be obstruction of justice, it is obvious that thinking about but deciding not to fire the prosecutor is nothing close to obstruction of justice.
What’s more, while it would not have been wise to fire Mueller, it would have been bonkers not to consider doing so. The history of quasi-independent counsels is an unhappy one: The investigations often go on for years, they careen far from their original premises, and they make it very difficult to maintain and recruit good staff (the anxiety of enduring prosecutors pushes many good prospects away, and while the jobs are prestigious, they aren’t well-paying enough to cover the legal fees). A president under a cloud of suspicion is compromised in his relations with foreign leaders, his interactions with Congress, and his overall capacity to lead. The presidency is important, which is why a special counsel should never be appointed to probe the president absent concrete evidence of serious criminal wrongdoing.
We go through all of these details because they show that, when he was inevitably asked about the Times’ report, Trump could have given a perfect, easy, truthful response: “I had ample reason to consider firing Mueller; there would have been no legal impediment to my removal of a prosecutor under the circumstances; and the whole matter is nonsense because I didn’t do it anyway.”
Instead, what was his response? “Fake news.”
Now, maybe on some level, Trump meant that this is a non-story inflated into big news. But he framed it as a denial. Understood that way, the response is surely untrue. It is also self-defeating: It invites the Times to publish a dozen more stories to establish that its original one was accurate. A non-issue becomes an occasion to further batter Trump’s veracity.
Now, as politics, this may work for Trump. It may give him the media villain to rally his supporters around. But it would not work in court.
If you’re Trump’s lawyer watching this, you’re saying to yourself, “No way I let this guy testify.” When he feels threatened, his impulse is to deny now and clean it up later (e.g.: I didn’t tell Comey to drop the Flynn investigation, but even if I had done so it would have been appropriate . . . ). In politics, you’re apt to be safe with this sort of thing — if the ultimate clean-up is plausible, people tend to forget the original dissembling. But in a courtroom, or an interview with prosecutors and FBI agents, a false denial or even a bumbling misstatement can get you indicted.
The burden should be on Mueller to demonstrate the necessity of questioning the president in any form, not on the president to provide reasons for not submitting to questioning. Being president is reason enough.
Trump is litigious and cocky. He has been in lots of lawsuits and has taken the measure of lots of lawyers. He may be very confident that he can handle an interview. He may be certain he has not colluded with Russia and thus convinced there’s no need to worry.
Trust me, though: He has not been sweated before like he would be in a special-counsel interview. It would be a mistake to assume that because Mueller’s team overflows with Democratic partisans, they are just like the political hacks Trump jousts with all the time. These particular prosecutors are extraordinarily good at what they do. They are not going to be cowed or charmed. If Trump agrees to speak to them, he will not be able to control the direction of the questioning; and if he loses his cool and says things that are dubious or flatly untrue, they will clean his clock.
In other words: Trump the man could walk out of an interview with Mueller in real jeopardy, despite walking into it in nothing more than a bad mood. Which brings us to our other client: Trump the president.
A president of the United States should never be the subject of a criminal investigation, and should never be asked to provide testimony or evidence in a criminal investigation, in the absence of two things: solid evidence that a serious crime has been committed and a lack of any alternative means to acquire proof that is essential to the prosecution.
There is a simple reason for this: The awesome responsibilities of the presidency are more significant to the nation than the outcome of any particular criminal case. There is an exception: When there is reasonable cause to believe the president is complicit in a serious criminal offense, and that he has evidence or knowledge that would be admissible and probative. Only in those circumstances should a president be subject to subpoena, and only then should he submit to questioning. Trump has a responsibility to the office to enforce that standard.
As we have noted here since before Mueller was appointed, the Justice Department has improperly assigned a prosecutor in the absence of grounds to believe a crime has been committed. “Collusion with Russia” is not a crime, and there are presently no grounds to believe the president conspired with Putin’s regime to violate any American law.
And again, it is not criminal obstruction for a president to weigh in on whether a subordinate (such as Michael Flynn) should be investigated, or to fire a subordinate — including a subordinate (such as James Comey, or theoretically Mueller himself) who is involved in conducting an investigation, particularly an investigation that continues uninterrupted despite the firing. Whether we think these are foolish things for the president to have done is beside the point. We are talking here about whether they are criminal actions, and they are not. If the voters are repulsed and want to take it out on Trump and his party come election time, that’s democracy. It is not, however, the business of prosecutors.
Every other independent-counsel investigation in which an American president has been a subject was triggered by an actual crime. Those presidents were on notice of the contours of the probe, and of the criminality that rendered it appropriate for a prosecutor to be appointed and for a president to be questioned. That is not the case in Mueller’s probe. It has been formally described as a counterintelligence investigation, which is a national-security inquiry about a foreign country’s designs against the United States, not a criminal investigation targeting an American for prosecution on a known offense.
No competent lawyer would allow the lowliest criminal suspect in the country to testify before a grand jury without a description from the prosecutor of precisely what crime is being investigated, and an explanation of the suspect’s status — target likely to be indicted, subject potentially indictable, or mere witness not in jeopardy of being charged. It would be absurd for a prosecutor to seek testimony from the president of the United States without a compelling demonstration of (a) probable cause that a crime has been committed, and (b) need for information that only the president is in a position to provide.
By the way, that includes testimony in the form of answers to written questions. To be sure, written interrogatories would give Trump and his counsel more notice of the prosecutor’s case than they now have. That would alleviate some, but by no means all, of the concern about making assertions that could be grist for a false-statements charge. But it does not solve the more fundamental problem: The burden should be on Mueller to demonstrate the necessity of questioning the president in any form, not on the president to provide reasons for not submitting to questioning. Being president is reason enough.
Trump the man should avoid Mueller’s highly skilled, highly aggressive prosecutors. Trump the president should not be asked to meet with them in the first place.