The Corner

Law & the Courts

Mueller’s Questions about Collusion Are the Most Interesting Questions of All

Robert Mueller in 2011 (Eric Thayer/Reuters)

Yesterday the New York Times obtained leaked copies of questions that special counsel Robert Mueller allegedly intends to ask Donald Trump. Today, the president tweeted a fundamentally false response:

No questions on collusion? Did he even read the list? In fact, from the entire list only the collusion questions stopped me in my tracks and made me wonder if there were material facts we don’t know. For example, here are the two most interesting queries:

What knowledge did you have of any outreach by your campaign, including by Paul Manafort, to Russia about potential assistance to the campaign?

To this point, the “Manafort scandal” has been about his own financial dealings, not his campaign conduct. Yet this question seems to imply the existence of an outreach effort that would transform the publicly available understanding of events. No, we don’t know if the question is accurate. Yes, it could represent nothing more than a fishing expedition (though that’s unlikely — good lawyers who possess limited ability to question a witness rarely indulge in fishing expeditions), but this question should at least open our minds to the possibility that Mueller may have information that hasn’t leaked (so far) to any major media outlet.

What did you know about communication between Roger Stone, his associates, Julian Assange or WikiLeaks?

Roger Stone’s outreach to WikiLeaks and his communications with Guccifer 2.0 (including his apparent foreknowledge of WikiLeaks document dumps) have been well-chronicled. It’s one thing if these were the actions of a private citizen, acting on his own. But Stone is a longtime Trump ally, and utilizing a “friend” instead of campaign officials as an intermediary is an old method of manufacturing distance and plausible deniability. Again, this is a question indicating that there is still much we don’t know about Trump’s actions or the actions of his friends and associates.

There are a number of other questions related to real estate, social media, hacking, and Trump’s relationship with Aras and Emin Agalarov. The questions, taken together, indicate that the collusion inquiry continues. They do not, however, demonstrate that collusion has occurred.

One final thought — a large number of the questions seem to deal with the obstruction of justice inquiry related to the firing of Comey and to potential efforts to end the special-counsel investigation itself. These questions on their face don’t appear to betray the existence of unknown material facts but rather appear focused on ascertaining the president’s intent and purpose in carrying out actions that have been widely-reported and are widely-know. I’m deeply skeptical that the president violates the obstruction of justice statute if he fires (even under false pretenses) public officials who serve at his pleasure.

In other words, Mueller may uncover extensive evidence of private pressure and public deceptions, but that still falls well short of the Nixon/Clinton obstruction precedent. As I wrote in February:

Past presidential precedents suggest that the bar for impeachment is high enough that it requires proof of efforts that either corruptly prevent investigators from gaining information or corruptly facilitate perjury or other actions that feed false information to investigators or otherwise impede the investigators from doing their work.

Mueller’s questions don’t betray the existence of evidence of that level of misconduct. One can’t draw definitive conclusions from one leaked list, but to the extent that we know anything, we know Trump’s tweet was false. The collusion inquiry is alive and well.

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