Trump’s legal team has argued that the president has the power to hire and fire appointees and the special counsel does not have the authority to ask him to explain those decisions. Giuliani said Thursday the team was steadfast in that position.“That’s a no-go. That is not going to happen,” Giuliani said. “There will be no questions at all on obstruction.”
Giuliani subsequently backtracked a bit on this in an interview with NBC News, claiming that such questions are “not ruled in or out.” But clearly, Giuliani is moving closer to the position that Trump will refuse to answer any Mueller questions about obstruction of justice, which could result in Mueller trying to subpoena him.
Trump and Giuliani reportedly believe they can bluff Mueller out of taking the subpoena route. A source close to Trump’s legal team tells Axios, it’s “Mueller’s moment of truth.” Axios further reports:
Trump’s lawyers are betting that Mueller won’t have the heart for the multi-month court fight that would result from trying to compel the president to be interviewed.The White House bet: Mueller will blink and ultimately issue an incomplete report, avoiding the stakes of a court battle.
Team Trump’s position, then, is twofold. First, they assert Mueller simply does not have the authority to question Trump about potential obstruction at all, because as “chief law enforcement officer,” Trump cannot, by definition, commit obstruction. as that memo from Trump’s lawyers put it. Second, they believe Mueller won’t have the stomach for a subpoena fight, meaning Trump is strongly positioned to evade a sit-down interview.
It is not hard to spot the flaws in these arguments. First, there is a strong case that the president can violate obstruction of justice statutes, if he interferes with investigations out of “corrupt intent.” Regardless, Mueller himself is operating from the assumption that questioning a president about obstruction is perfectly legitimate, as we know from that leaked list of his questions, many of which concern obstruction. So this argument clearly isn’t dissuading him.
Second, it’s hard to imagine Mueller would back down from a subpoena fight if he genuinely thinks he needs to question Trump about obstruction to develop a full case. If Mueller does decline to seek a subpoena to force questioning about obstruction, it’s likely this would only happen if he didn’t see any serious need to do this.
The real reason Giuliani fears a Mueller interview
The real reason Trump and Giuliani are moving towards evading face-to-face Mueller questioning about obstruction is obvious: Trump’s lawyers know it would place him in serious jeopardy. This basic state of affairs is right out there on the public record. As The Post recently reported, Giuliani has warned of this very thing:
Giuliani has repeatedly warned that such an interview would expose Trump to legal danger, saying that if Trump made any misstep or if Mueller later determined that other witnesses were more credible than Trump about what he had said and done, the president could face accusations of perjury.
In other words, Giuliani expressly believes that if Trump’s explanation for all he has done to obstruct the probe — fire former FBI director James B. Comey, demand that Comey go easy on his national security adviser, try to get his attorney general to protect him from the investigation, and so forth — is contradicted by other witnesses, Mueller will believe them and not Trump!
We also know Trump’s own legal team does not believe he is prepared to handle Mueller’s questions without landing himself in prison. As Bob Woodward’s reports in his new book, “Fear,” Trump’s legal team enacted a practice session with him, and it was an utter disaster, with Trump repeatedly stumbling into contradictions and lies. This prompted former Trump lawyer John Dowd to tell him: “Don’t testify. It’s either that or an orange jumpsuit.”
Robert F. Bauer, the White House counsel under President Barack Obama, told me that Trump’s lawyers all but certainly want to avoid an interview for good reason. “Trump is not the kind of person who is going to deliver a disciplined and reliable performance,” Bauer said. “What the lawyers are looking at is the impossibility of preparing him adequately for an interview, and the utter impossibility of predicting what he will say at an interview.”
Trump will almost certainly never get indicted for obstruction. But Mueller will issue a report on his findings, and they will likely be extremely damaging politically or potentially provide grounds for impeachment by a Democratic House. And it’s likely a Mueller interview can only hurt in this regard.
After all, Trump admitted on national television that he fired Comey out of anger over the Russia probe, and extensive reporting has already established that he deliberately acted to derail it in multiple other ways. Quite obviously, Trump sincerely believes there is nothing whatsoever wrong with doing this, since the mechanisms of accountability are not, in his view, legitimately being applied to him. So it’s hard to see how an interview — in which he’d likely give voice to this sentiment once again — can help him.
Perhaps Trump can avoid a sit-down interview, if Mueller decides he doesn’t need one, or if Trump’s team fights this all the way to the Supreme Court and wins with Judge Brett Kavanaugh casting the deciding vote (Trump may have chosen him for precisely this purpose). But even these scenarios would not allow Trump to evade a reckoning at the hands of Mueller’s report and the political fallout it will unleash. No matter how much Trump and Giuliani bluster, their real reason for dodging the interview betrays Trump’s vulnerability more than anything else.