Politics & Policy

It Would Still Be Foolish for Trump to Talk to Mueller

U.S. President Donald Trump in Washington, U.S., April 3, 2018. REUTERS/Carlos Barria
He has not climbed into the ring with this breed of adversary before.

According to the Washington Post, Robert Mueller says President Trump is not “a criminal target at this point.” The Post’s anonymous sources claim that the special counsel has conveyed that assurance to the president’s private attorneys.

That is good news for Trump. After all, between Mueller’s Gang of 17 alpha-prosecutors and the sundry scores of Justice Department lawyers and federal agents who were at this long before Mueller was appointed, the Russia investigation has been going on for nearly two years. By now, you would think that the focus of that effort would have become the formal “target” if there were any there there.

The president shouldn’t get too giddy, though. It’s nice not to be designated a target, but then there are those three little words, at this point.

Mueller is still investigating.

Let us revisit the “What’s My Client’s Status?” lesson in Investigations 101, the course we took during the Clinton-emails caper — in which no one’s status mattered much since, unlike in Mueller’s probe, no one was ever going to be charged.

In every investigation, a prosecutor drops relevant people in one of three buckets: target, subject, and witness. The two extremes are the easy ones to grasp. A “target” is virtually certain to be charged with a crime. A “witness” has relevant knowledge but is not suspected of any wrongdoing — think of the victim in a robbery. A defense lawyer always hopes the prosecutor will think of his client as a mere witness. While “target” is clearly the worst-case scenario, at least your choices are clear: Either cut a plea deal or fight the case at trial — no target is going to talk his way out of being charged.

“Subject” is the fuzzy category. A “subject” is someone whose behavior is being evaluated by the prosecutor and the grand jury. Usually, there is not enough evidence to charge . . . yet. As long as the investigation continues, a subject can become a target, and then a defendant, at any moment.

That is the limbo where Trump sits. And did I mention that Mueller is still investigating?

That being the case, why on earth would the president submit to an interview by the special counsel?

It is easy to see why Mueller wants an interview, but what’s in it for Trump?

The possible upside Trump perceives is wishful thinking: the notion that the special counsel is operating on the president’s timeline rather than his own, that Mueller is more sympathetic to Trump’s desire to be out from under the cloud of criminal suspicion than to his own agenda — whether that is to answer all outstanding questions raised by collusion and obstruction allegations (the benign view) or to get Trump impeached (the “deep-state conspiracy” theory).

Mueller is marching to his own beat. If the president submitted to an interview, it would not end the probe of his conduct. It would inevitably raise more issues and could easily lay the groundwork for false-statements allegations.

It is easy to see why Mueller wants an interview, but what’s in it for Trump?

The situation has not changed since the last time I addressed this topic. The president, to put it kindly, is not a pillar of rectitude. An interview with a prosecutor is not something you want to volunteer for if you are prone to alter your version of events or your assessment of people depending on the expedience of the moment. That may be the art of the deal, there being no penal statute making it a crime to make false statements in real-estate negotiations. Bluffing a prosecutor or an FBI agent, on the other hand, is a felony — which is to be avoided, especially when you have lots of enemies on the hunt for high crimes and misdemeanors.

Trump, moreover, will never know everything the special counsel knows about the investigation. Let’s say he thinks Mueller just wants to ask him about possible obstruction of the Russia investigation. What happens when Mueller’s first question, instead, is something like, “So, did you know about the $130,000 your lawyer paid to the porn star?” Unlike the media, prosecutors will not have to content themselves with a curt denial and suggestion that they go talk to the lawyer.

Much has been said (and tweeted) about the political leanings of Mueller’s subordinates. Trump enthusiasts regard some of them as hacks. For what it’s worth, I think Mueller has exhibited poor judgment by retaining partisan Democrats to steer an investigation fraught with bitter partisan politics. (Please spare me the drivel about how regulations forbade Mueller from inquiring into their politics. These are well-known lawyers whom Mueller recruited; he chose to bring their partisan baggage into his probe.) Still, it would be a profound mistake for the Trump camp to confound hackery and skill. I am here to tell you that these lawyers are ruthlessly competent. Yes, Trump has been in a lot of litigation, and he has sat for many a deposition. But he has not climbed into the ring with this breed of adversary before, not with this kind of jeopardy at stake. He could end up on his back before he even realizes the first round has started.

Let’s make it artificially simple: Assume that Mueller has given up on collusion with Russia and isn’t much interested in Stormy Daniels. (I don’t buy that, but let’s indulge the possibility.) Let’s assume it’s all about obstruction, and that the one and only thing Mueller wants to know is whether Trump had corrupt intent when he lobbied the FBI’s then-director James Comey on behalf of former national-security adviser Michael Flynn, and when he later cashiered Comey.

How is it in Trump’s interest to help Mueller on that?

There are many legal experts who believe, as I believe, that Mueller has no obstruction case as a matter of law unless he can prove that Trump did something that was inherently illegal to influence an investigation — e.g., bribing witnesses or suborning perjury. To the contrary, based on what we currently know, Trump recommended (but did not direct) that the investigation of Flynn be dropped, and fired the FBI director three months later. Those are legal acts — i.e., acts that are within a president’s constitutional authority — even if we may judge them unwise or unsavory.

If I am right, legal acts cannot predicate an obstruction charge. Why should the president of the United States risk exposing himself to false-statements charges to help a prosecutor explore something that is not a crime?

It is highly unlikely that the special counsel will ever have a witness, other than Donald Trump, who can fill this hole in the case.

On the other hand, let’s say I am wrong about obstruction law. Some experts theorize that a president could be liable based on acts that, though ostensibly legal, are carried out with corrupt intent (e.g., a president pardons someone as inducement not to testify against the president). If, for argument’s sake, we accept this theory, corrupt intent would be an essential element of the obstruction offense. That means it would be the prosecutor’s burden to prove it beyond a reasonable doubt.

Even if Trump is utterly convinced that he did not have corrupt intent, how is it in his interest to consent to an interview on this point?

It is highly unlikely that the special counsel will ever have a witness, other than Donald Trump, who can fill this hole in the case — someone who can convincingly testify that Trump told him, “Yeah, I had to get rid of Comey because the FBI was closing in on me over that deal I cut with Putin.” Keep in mind: If Mueller had such a witness, he would not have told Trump’s lawyers that Trump is not a target.

No, to prove Trump’s state of mind, Mueller needs testimony from Trump. If the president were to tempt fate and provide it, this would be where the expertise of Mueller’s team comes in.

None of these seasoned prosecutors is under the illusion that, if there were an interview, Mueller would ask, “Sir, did you have corrupt intent?” and the president would respond, “Gee, Bob, you got me there. I was worried that Flynn would roll on me, so I badgered Comey to drop the case. And when I saw that Comey was all over this Russia thing, I gave him the ol’ Apprentice heave-ho to throw the FBI off my trail.”

If the supremely confident Trump thinks he’d be fine as long as he’s ready with steadfast denials when the big corrupt-intent question gets asked, then he is perilously mistaken about how the interview would go. Skilled interrogators do not approach things that way. They would ask probing but roundabout questions about various situations in Trump’s business history and presidency, focusing on divergences between what Trump says and what the facts are, or between what he says and what he knows — between the persona and reality.

More to the point, they would dig into Trump’s extensive statements about Comey — some of which are internally contradictory and strain credulity. Does anyone believe the president’s denial that he asked Comey to pledge loyalty, especially after Trump’s rages at Jeff Sessions and his paean to Eric Holder’s unswerving fealty to President Obama? What about the president’s denial that he leaned on Comey to drop the investigation of Flynn, a matter about which Comey made contemporaneous reports, and as to which Trump, even in his denial, caveated that there would have been nothing wrong if he pushed Comey to drop the matter? Why did Trump later tweet that he fired Flynn because Flynn lied to the FBI? It is not clear that the FBI thought Flynn had lied at the time, but the tweet suggests Trump did. Was Trump’s tweet inaccurate, or did he know that Flynn was guilty of a felony at the time he allegedly pressed Comey to pull the plug on the investigation?

While those topics could make for some cringeworthy moments, consider how hot the witness seat gets when Mueller’s team asks about Comey’s dismissal.

First, before firing the FBI director, the president dictated an angry draft letter (which Mueller apparently has) explaining that he was firing Comey for, among other things, refusing to state publicly that Trump was not a suspect (which Comey had privately assured Trump was the case). Worried about the letter’s tone, the White House counsel brought Justice Department leadership into the discussion of how to rationalize Comey’s firing. Deputy Attorney General Rod Rosenstein dutifully drafted a memorandum condemning Comey’s improper public statements about the Hillary Clinton emails investigation, and Attorney General Sessions added a brief letter recommending Comey’s removal. But they were rationalizing a decision Trump had already made, not making it on their own.

The questioning would be designed to make the president squirm and lash out, torn between the Scylla and Charybdis of admitting past falsehoods or contriving new ones.

Yet in announcing the director’s dismissal on May 9, 2017, Trump first indicated that it had been the Justice Department’s idea. The next day, the president bizarrely gloated to Russian diplomats at an Oval Office meeting: “I just fired the head of the FBI. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off.” The next day, the president told NBC News that the dismissal was his own decision, not the Justice Department’s — directly contradicting a forceful statement by Vice President Mike Pence. Comey, Trump said, was a “showboat” and a “grandstander” who had plunged the FBI into “turmoil,” so he decided to replace him with “somebody that’s competent.” Upon deciding “to just do it,” Trump added, “I said to myself, I said, ‘You know, this Russia thing with Trump and Russia is a made-up story, it’s an excuse by the Democrats for having lost an election that they should have won.’” By the next day, the president was strangely inviting Watergate comparisons by tweeting, “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press.” After two months of media questioning, Trump finally conceded that he did not actually make recordings of his conversations with Comey. All of this, mind you, is against a backdrop of Trump’s having initially decided that Comey was a good FBI director who should be retained — multiple times, Comey has testified, Trump told him he “was doing a great job and hoped [he] would stay” to complete the six years remaining on his term.

Now, none of these shifts and swerves establish felony obstruction. The chief executive had constitutional authority to weigh in on the merits of investigating Flynn regardless of whether he believed Flynn was guilty of lying to investigators (prosecutors frequently choose not to prosecute guilty people). And in the same NBC News interview referred to above, Trump said he believed the Russia investigation should go forward, just as the president had previously told then-director Comey that it would be good to find out whether any of Trump “satellites” had done anything wrong. Trump’s apparent goal was to have the public informed of the FBI’s assurance that he was not a suspect, not to interfere in the FBI’s investigation of Russia’s election meddling (which the president, in any event, would have had constitutional authority to do).

But understand: Mueller’s prosecutors do not expect Trump’s interview to help them prove obstructive conduct; by their lights, the pressure to drop the Flynn case and the firing of Comey already give them that. The prosecutors would instead be looking to establish corrupt intent on a theory that Trump gives inconsistent, mendacious explanations for his actions because his real reasons must stay hidden — because they are corrupt.

The questioning would be designed to make the president squirm and lash out, torn between the Scylla and Charybdis of admitting past falsehoods or contriving new ones. Mueller would be laying the groundwork to argue:

(1) The president cannot be trusted when he describes his thought process about pretty much anything.

(2) The president made numerous inconsistent statements about Comey; first he was hoping to co-opt Comey, but when that didn’t work, he pivoted to a strategy of disparaging Comey.

(3) All the while, he could not afford to say what he was really thinking — viz., that Comey’s steering of the Russia investigation was a threat to him.

If Mueller’s team can do that, it would not matter to them that Trump strenuously denies having corrupt intent. Mueller would argue that Trump’s denial is meaningless and that his corrupt state of mind is proved by a pattern of deceit that the president is unable to explain.

Personally, I don’t believe an interview that proved disastrous for Trump would make the obstruction case for Mueller. The acts involved do not amount to obstruction, and even if Mueller could illustrate that Trump routinely dissembles and deceives, it would not mean he corruptly intended to impede the Russia and Flynn investigations.

But it doesn’t matter what I think. It matters what Congress thinks, since it is to Congress that Mueller’s report will eventually go. The special counsel is not going to indict the president; this is all about compiling a report that may form the basis for impeachment proceedings. And the House of Representatives has the power to impeach Trump for obstruction even if a court-prosecutable case of obstruction has not been established. It is up to lawmakers to decide what a “high crime and misdemeanor” is — as we’ve noted may times, it need not be a statutory penal offense. If the Democrats take over the House after the midterms, you can expect that obstruction will be defined with a certain elasticity.

Democrats could use the alleged lies as both corroboration that the president had obstructed the investigation and as independent, additional grounds for impeaching him.

Moreover, I’m guessing most National Review readers have never been grilled by prosecutors with lines of inquiry portraying them as dishonest and erratic. Under the onslaught, the human impulse is to revise history or to deny that it really happened in the first place. None of us likes to be confronted with untrue things that we’ve said and indefensible things that we’ve done. That is why, when witnesses lie in law-enforcement interviews, the lies often involve previous lies and missteps. No one wants to admit such things. But lying about them in a law-enforcement interview is a crime.

On that score, if there is one thing Mueller’s team is especially adept at, it is turning witness interviews into false-statements prosecutions. The Russia probe has not produced any collusion cases, but Mueller has nailed four subjects of his investigation for lying in interviews — Flynn, George Papadopoulos, Richard Gates, and Alex van der Zwann. In fact, in prosecuting Flynn for false statements, Mueller apparently second-guessed the FBI agents who interviewed Flynn and found him truthful.

If Mueller’s prosecutors were to induce the president to make false statements, or if Mueller could at least colorably allege that Trump had done so, Democrats could use the alleged lies as both corroboration that the president had obstructed the investigation and as independent, additional grounds for impeaching him.

Look, Donald Trump doesn’t need advice from up here in the peanut gallery. He has good legal advisers and he has thrived on his guile for 71 years. For all I know, he figures he’s playing with the house money: He knows he did not collude with Russia or intend to obstruct the Russia investigation, and he is dying to tell Mueller his side of the story. If the interview were to go well, Mueller might be persuaded to wrap things up; if it turned into a debacle, Trump would still have the power to fire the prosecutor, and even to pardon himself. Would that result in an epic impeachment controversy? Sure, but Trump is rarely deterred by controversy — he seems to live for it. Impeachment is a political process, not a legal one. Were Trump to convince enough people that Mueller’s investigation is a politicized witch hunt, there would not be enough votes in the Senate to remove him, even if a Democratic-controlled House impeached him. And impeachment is unpopular, so Democratic agitation for it might ironically help him politically. The president may calculate that he can control the damage if agreeing to an interview by the special counsel turns out to be a bad bet.

I still don’t see what’s in it for him.

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