THE MORNING PLUM:
President Trump’s legal team is reportedly worried about the likelihood that special counsel Robert S. Mueller III will insist on interviewing the president with “open-ended, face-to-face questioning.” Trump’s lawyers are trying to determine whether they can place limits on that questioning or dodge it altogether.
One source tells The Post that Trump is perfectly prepared for such questioning, because he believes it will put to rest any questions about collusion with Russia. Yet Trump’s lawyers are worried anyway. Why? This newly reported nugget, from the New York Times, provides one possible explanation:
One person familiar with the discussions said Mr. Mueller appeared most interested in asking questions about the former national security adviser, Michael T. Flynn, and the firing of the F.B.I. director, James B. Comey — not the broader question of possible collusion with Russia. Those topics signal an interest in whether Mr. Trump tried to obstruct justice.
Recall that NBC News has reported that Mueller is focused on the period between Jan. 24, 2017, the day that Flynn lied to the FBI about his contacts with the Russian ambassador, and Feb. 13, when Trump fired Flynn. On Jan. 26, the White House was informed by then-acting Attorney General Sally Yates that Flynn had misled top Trump officials about those contacts.
NBC News also reported that Mueller appears interested in whether Trump may have instructed Flynn to tell those lies to the FBI. Flynn has pleaded guilty to lying to the FBI and is now cooperating with Mueller. And so, Mueller would likely ask Trump if he directed Flynn to lie to the FBI or was aware of those lies.
“The questions about Flynn will include, of course, the key issue of what the President knew about the Flynn lie and when he knew it,” Bob Bauer, the former White House counsel under President Barack Obama, emailed me today. “The ‘what’ question will go into the reasons why Flynn would lie, including any direction from the president or belief that Flynn may have had that he was expected to lie.”
It will be perilous terrain for Trump to face tough questioning about obstruction of justice. That’s because a lot turns on Trump’s motives for his efforts to impede the FBI’s investigation into his campaign’s possible collusion with Russian sabotage of our democracy: whether they were undertaken with “corrupt intent,” which the law defines as acting “with an improper purpose.”
And so, Trump would presumably be questioned about his intent and purpose in undertaking the following actions, which have been unearthed by dogged reporting: Directing his White House counsel to urge his attorney general not to recuse himself so that he could continue to protect Trump from the probe. Demanding Comey’s loyalty and pressing him to drop the probe into Flynn. Firing Comey when that loyalty was not forthcoming. Writing an unsent letter firing Comey that reportedly mentioned the Russia probe in the first sentence, then demanding a memo from the deputy attorney general that cited Comey’s treatment of Hillary Clinton’s emails, which Trump cited as a pretext for the firing before admitting that the Russia probe was, indeed, the motivation, something he boasted about to Russian visitors.
Indeed, Daniel Hemel, a law professor at the University of Chicago, points out that this is dangerous for Trump because he has already conceded his reason for firing Comey. “A principal challenge in many obstruction prosecutions is proof of motive,” Hemel emailed, adding that Trump’s “public and largely incriminating statements about why he fired Comey” will mean that “proving his purpose will be easier here than in most cases.”
There is, of course, an extensive debate over whether a president can be held criminally liable for obstruction of justice at all. The question is whether interfering with an investigation has blanket protection due to the president’s constitutional role as overseer of the executive branch. But as Hemel and Eric Posner suggest in an extensive discussion of presidential obstruction, it is reasonable to define interference in an investigation even by a president as illegitimate — and possibly illegal — when it is undertaken for corrupt purposes, such as shielding oneself and one’s associates from the workings of justice. And whether or not Trump is criminally liable, Mueller may establish a pattern of very serious (or even potentially impeachable) misconduct.
Trump would be pressed to explain, in his own words, his motives for all of those actions. In the cases where he denies them, he would be pressed on those denials. And if he again denied them to Mueller, those denials would be held up against the testimony of people like Comey, and of other officials to whom Comey may have confirmed his account at the time.
This would be a minefield for Trump, one demanding great care and precision in his answers. And Bauer, the former White House counsel, also points out that it would require extensive preparation. “This will require Trump’s time, attention and focus, and the lawyers will be working to produce a witness who is precise in answers and careful to answer only the questions asked and to stay on point,” Bauer tells me. “They are no doubt planning for more than one prep session.” Are those things you associate with Trump?
* GOP INVESTIGATES FBI CONTACTS WITH MEDIA: Politico reports on the latest effort by congressional Republicans to spin an alt-narrative to prevent the truth on Trump and Russia from coming out:
GOP congressional investigators have publicly and privately questioned senior Justice Department and FBI leaders about interactions with reporters covering the Trump campaign’s connections to Russia. The goal, according to a half-dozen lawmakers and aides, is to expose any concerted effort by law enforcement officials to spin an anti-Trump narrative in the media through unauthorized leaks.
This sort of thing only underscores the need for Democrats to use hardball tactics in response.
* GRASSLEY SHOULD RELEASE THE TRANSCRIPTS: The New York Times looks at the right-wing assault on Glenn Simpson, a co-founder of Fusion GPS who denies that the Steele Dossier triggered the Trump-Russia FBI probe. Note this:
“Uncooperative,” Senator Charles E. Grassley, Republican of Iowa, said of Mr. Simpson’s turn before the Judiciary Committee, which he leads. “Very cooperative,” said Representative Adam B. Schiff of California, the top Democrat on the House Intelligence Committee, where Mr. Simpson also appeared.
If Grassley believes Simpson was “uncooperative,” why not release the transcripts of his testimony to prove it?
* TRUMP TO MEET WITH LAWMAKERS ON ‘DREAMERS’: Trump is set to meet today with key lawmakers to try to reach a deal protecting the “dreamers.” Reuters reports:
Trump, under pressure from some conservatives, has said any … deal with Democrats must include ending “chain migration,” which could jeopardize the parents of Dreamers who are still in the United States illegally … Some House Republicans want to use Dreamer legislation to add more funds for immigration enforcement, which advocacy groups fear would be used to go after the relatives of the young immigrants.
In other words, Trump and Republicans might be able to accept a deal keeping the dreamers here if enough of their parents are either prevented from coming here or are deported to soften the blow.
* REPUBLICANS HOPE FOR ‘POLITICAL COVER’ ON DREAMERS: CNN reports on the thinking among Republicans who are trying to get to yes on protecting the dreamers:
The thinking is that Trump — who secured the Republican Party’s nomination by promising mass deportations and a border wall — can offer political cover for Republicans who may be fearful of backing any immigration bill that is viewed as amnesty among their base. With Trump’s blessing, Republicans believe they can find a way to move ahead on DACA. Without it, the votes are compromised.
Only Trump can break the terrible news to the GOP base that we are going to protect people brought here illegally as children without the consolation prize of wasting billions on a wall.
* OFFICIALS DEBATE ‘BLOODY NOSE’ STRATEGY: The Wall Street Journal reports that the standoff with North Korea remains very “fraught”:
U.S. officials are quietly debating whether it’s possible to mount a limited military strike against North Korean sites without igniting an all-out war on the Korean Peninsula. The idea is known as the “bloody nose” strategy: React to some nuclear or missile test with a targeted strike against a North Korean facility to … illustrate the high price the regime could pay for its behavior. The hope would be to make that point without inciting a full-bore reprisal by North Korea.
Just a reminder that for all of Trump’s lunacy and destructiveness during his first year, we have yet to see him face a very serious foreign policy crisis, and that may change in 2018.
* WHY TRUMP IS MORE DAMAGING THAN YOU THINK: Trump may be unfit for the presidency, but Paul Krugman notes that this is even more damaging because the administration under him is not up to the job of making up for his unfitness:
Many incredibly bad lower-level appointments have flown under the public’s radar. We only get a sense of how bad things are from the occasional story that breaks through … There has been a huge exodus of experienced personnel at the State Department; perhaps even more alarming, there is reportedly a similar exodus at the National Security Agency. … just one year of Trump has moved us a long way toward a government of the worst and dumbest.
Nah. The Trump administration is actually government by, like, the really smart and the very stable.
* AND TRUMP ‘RESENTS’ TALK ABOUT HIS MENTAL HEALTH: The Post reports that the White House is “struggling to contain” the public debate about Trump’s mental unfitness for the presidency, in the wake of Michael Wolff’s book. Note this:
Trump privately resents the now-regular chatter on cable television news shows about his mental health and views the issue as “an invented fact” and “a joke,” much like the Russia probe, according to one person who recently discussed it with him. … But Wolff’s book has thrust the topic to the forefront of public debate, prompting the White House to confront the issue directly.
Also, Trump’s own conduct has played a niggling role in prompting this public debate, but of course, Trump is never at fault for anything, because #FakeNews. Also, he’s totally sane.