As we get closer to the end of special counsel Robert S. Mueller III’s investigation of the Russian attack on the 2016 election and whatever related crimes might have been committed here at home, President Trump and his legal team are becoming more and more resistant to the idea of answering Mueller’s questions. The explanation they are offering — that such an interview would be a “perjury trap” — is simultaneously ridiculous and all but an admission that the president of the United States is guilty of something. But most of all it’s disingenuous, because perjury charges are not what they’re really afraid of.
On Sunday, Rudy Giuliani told NBC News’s Chuck Todd that “I am not going to be rushed into having him testify so that he gets trapped into perjury,” adding a bit of postmodern wisdom, that “truth isn’t truth.” And now Trump himself is offering the same justification for avoiding Mueller’s questions:
In an interview with Reuters, Trump echoed the concerns of his top lawyer in the probe, Rudy Giuliani, who has warned that any sit-down with Mueller could be a “perjury trap.”
The president expressed fears that investigators could compare his statements with that of others who have testified in the probe, such as former FBI Director James Comey, and that any discrepancies could be used against him.
“So if I say something and he (Comey) says something, and it’s my word against his, and he’s best friends with Mueller, so Mueller might say: ‘Well, I believe Comey,’ and even if I’m telling the truth, that makes me a liar. That’s no good.”
Let’s first dispense with the “perjury trap” idea. A “perjury trap” occurs when investigators ask a question knowing that the person being interviewed will respond with a lie. When it happens, it’s usually because the suspect doesn’t realize that the investigators know something critical. In the best-known example, Bill Clinton was asked in a deposition about his relationship with Monica Lewinsky; it was a trap because he wasn’t aware that independent counsel Kenneth Starr already knew all about their relationship, so Clinton didn’t realize that if he denied it, his deceptions were bound to be revealed.
So when Giuliani and Trump insist that Mueller is laying a perjury trap, they’re admitting that if Mueller asks certain questions, Trump will respond by lying. In ordinary circumstances, there are plenty of reasons that someone suspected of a crime wouldn’t want to answer questions from police or prosecutors even if they’re innocent, but “If I let you ask me questions, I’ll lie and then you’ll indict me for perjury” is not a particularly compelling defense.
That brings us to Trump’s specific justification: He and James Comey have differing accounts of their conversations (particularly Comey’s description of how he says Trump pressured him to go easy on former national security adviser Michael Flynn), so if Trump offers his story under oath, Mueller will simply decide that Comey is the one telling the truth because he and Comey are “best friends” (they aren’t), then indict Trump for perjury.
Let’s put aside whether any prosecutor would try to indict someone because of a “he said/he said” disagreement about what happened in a private conversation. The fact is that we already know that Mueller is not going to indict Trump.
How do we know that? Because Trump’s own lawyers, including Giuliani, told us so three months ago:
The special counsel, Robert S. Mueller III, will not indict President Trump if he finds wrongdoing in his investigation of Trump campaign links to Russia, according to the president’s lawyers. They said Wednesday that Mr. Mueller’s investigators told them that he would adhere to the Justice Department’s view that the Constitution bars prosecuting sitting presidents.
According to that account, which has not been disputed, Mueller has essentially decided to leave Trump’s fate up to the political process. Mueller won’t indict Trump, but he’ll likely lay out whatever evidence he finds of Trump’s wrongdoing (and that of everyone else he has investigated) in some kind of final report. If Congress finds that it warrants impeachment, it’ll be up to Congress to take that step.
That is where we come back to what Trump is really afraid will happen if he answers Mueller’s questions. His lawyers have certainly seen what has happened when Trump has been deposed before, and the results weren’t pretty. In one case, he was forced 30 separate times to admit lies he had told. In another deposition, regarding the fraud lawsuit over Trump University, Trump claimed to be unable to remember so many specific things that the opposing lawyer eventually asked him whether he remembered saying he has one of the world’s best memories. Trump said he couldn’t remember saying that. (In fact, he had.)
Though Trump might well commit perjury if forced to answer Mueller’s questions, he won’t face prosecution for it. But everyone would see him desperately distract, deflect and dissemble in answer to questions about Russia and obstruction of justice. And it isn’t just the content of specific lies he might tell. Facing an informed interrogator able to ask follow-up questions, he would also almost certainly wind up looking evasive, self-contradictory, disingenuous — in a word, guilty.
That’s the real danger that Trump faces: not legal danger, but political danger. An interview with Mueller might not make impeachment and removal from office more likely (he has a firewall of Republican support in Congress to prevent that), but it will almost certainly make a defeat in 2020 more likely.
If Trump continues to resist, Mueller can just subpoena him, as Starr did to Clinton. All indications are that Trump would fight the subpoena all the way to the Supreme Court. We don’t know how that case would turn out, but we do know this: The president is afraid to answer questions in front of the world, and he has good reason to be.