If you’re one of President Trump’s attorneys, the thought of him sitting down with special counsel Robert S. Mueller III to answer questions about the Russia scandal is absolutely terrifying, even if you knew it would eventually come to this. We learned earlier this week that Mueller raised the issue of an interview with Trump’s attorneys in December, and Wednesday, Trump was asked about it during a news conference.
“We’ll see what happens,” he said, but he added: “When they have no collusion — and nobody’s found any collusion at any level — it seems unlikely that you’d even have an interview.”
Trump is many different kinds of wrong here: There were multiple contacts between Trump officials and Russians that could be called collusion, and collusion isn’t the only thing Mueller is investigating anyway. And if suspects could say to prosecutors and police, “I’m totally innocent, so there’s no need to interrogate me,” then the jails would be empty.
So it certainly seems like we’re headed for a confrontation, since Trump doesn’t want to testify and Mueller very much wants him to. How is it going to play out? Let’s walk through events as they are likely to unfold.
What Mueller surely wants is the most open conversation possible, not limited in time or subject. That way he’d be able to take his time, ask Trump about anything and ask all the follow-up questions he wants. Trump’s attorneys, on the other hand, are dealing with an erratic client whom they surely fear will implicate himself, either through sheer stupidity or because Mueller forces him to do so under oath.
So you can conceive of Trump’s team having an ordered set of preferences. The best scenario would be that Trump answers no questions at all. The next best scenario would be that Trump gives written answers to questions, which would enable the lawyers to carefully edit the answers to make sure none of them are damaging to him. After that would be an interview that’s limited in some way. The least preferable option would be an open-ended deposition.
Trump’s lawyers may try to limit the questions to just those about direct contacts with Russia, since it’s entirely possible that all those contacts happened without Trump’s specific knowledge. But it’s almost impossible to see Mueller agreeing to that since his inquiry is also focused on obstruction of justice — including Trump’s firing of FBI Director James B. Comey, which the president admitted on national television he did out of anger over the Russia investigation and after which he told the Russian foreign minister and ambassador the same thing. Mueller has also been pursuing other avenues of potential prosecution as well, including matters related to Trump’s spectacularly shady financial history, which is peppered with contacts with a colorful cast of Russian characters, including mobsters and oligarchs.
Presidents have testified under oath on a few occasions before. The most direct parallel is with Bill Clinton in 1998. After Clinton had resisted independent counsel Kenneth Starr’s attempts to interview him about his affair with Monica Lewinsky, Starr issued a subpoena for Clinton to testify before a grand jury. In the end, the two sides negotiated ground rules under which Clinton was deposed in the White House instead of a courtroom and his lawyers were allowed to be present. The videotaped deposition, which stretched over five hours, was released publicly.
As that precedent shows, the outcome of what is almost certain to be a confrontation depends on a combination of legal and political factors. It will likely begin with a negotiation (which may already be going on), in which the two sides try to agree on a set of ground rules that is acceptable to both. But if they can’t agree, the next step would be for Mueller to issue a subpoena demanding that Trump appear before the grand jury.
Grand jury testimony could be a real disaster for Trump. His lawyers wouldn’t be there to help him, leaving him with only his wits and his innocence (ahem) to protect him. Which is why Mueller could use that threat the same way Starr did; keep in mind that Starr withdrew his original subpoena once Clinton’s lawyers agreed to what everyone knew would be a pretty invasive deposition.
That brings us to another possibility, one I think we should be prepared for. What if Mueller issues a subpoena for Trump to appear before the grand jury and Trump simply refuses? It would be shocking: the president would be refusing to answer questions in what could turn out to be one of the biggest scandals in American history. But Trump might not care, particularly if he’s worried that the testimony would require him to either admit to crimes or commit the crime of perjury.
If Trump refused to obey the subpoena, I’m sure that his lawyers could come up with some rationale for why he had the right to do so, however legally shaky it might be. Trump has shown time and again that he finds the very idea of courts exercising power over him to be offensive and unacceptable, so it isn’t hard to imagine him tossing a subpoena in the trash and telling his lawyers to get Mueller off his back. And of course, Trump could move to fire Mueller, which would be its own scandal.
Short of that, the question of whether Trump had to answer questions (or invoke his Fifth Amendment right against self-incrimination, which would also be a political disaster) would quickly go all the way up to the Supreme Court. And while reasonable people might assume that of course the court would rule that the president has to comply with a subpoena from a legally appointed special counsel on a matter of national security and potential criminality, there’s no real way to be sure. I’m certain there would be at least three votes (Alito, Thomas, and Gorsuch) for the legal principle known as Republican Presidents Get To Do Whatever They Want; the question would be whether Justice Anthony M. Kennedy and Chief Justice John G. Roberts Jr. would join them.
So the outcome is very much in doubt. We know Trump is going to resist this as much as he can, and we know Mueller is no pushover. So we’re in for a fight.