Special counsel Robert S. Mueller III has told President Trump’s legal team that his office is likely to seek an interview with the president, triggering a discussion among his attorneys about how to avoid a sit-down encounter or set limits on such a session, according to two people familiar with the talks.
Mueller raised the issue of interviewing Trump during a late-December meeting with the president’s lawyers John Dowd and Jay Sekulow. Mueller deputy James Quarles, who oversees the White House portion of the special counsel investigation, also attended.
The special counsel’s team could interview Trump soon on some limited portion of questions — possibly within the next several weeks, according to a person close to the president, who spoke on the condition of anonymity to describe internal conversations.
The request reveals two disagreeable aspects of the Russia investigation. First, the investigation, Trump’s lawyers must certainly have divined, is very much about Trump. This is not about whether “anyone” on the campaign colluded/conspired with the Russians but about whether he did or was aware of such action, and, more seriously for Trump, whether he has committed obstruction of justice or other criminal or impeachable acts in attempting to thwart the investigation. Second, while Trump once boasted that he’d be willing to testify under oath, his lawyers would be committing gross malpractice to let him do so.
Without a skilled prosecutor to press him, Trump admitted in an interview with NBC’s Lester Holt that he had Russia in mind when he fired FBI Director James B. Comey. Imagine how things could go when Mueller queries him with the benefit of evidence acquired from document requests (e.g., the original draft of the memo firing Comey) and testimony taken under oath from others. The potential for Trump — who has never appeared to really understand that there is anything wrong with ordering the Justice Department to lay off a former aide or drop an investigation and who seems to assume the attorney general’s job is to protect him — to implicate himself is great. (Well, of course I told Comey to lay off Mike Flynn!) No matter how prepared he is, Trump’s impulsiveness and conviction he is his own best defender may lead him down perilous paths. He may not only contradict himself but multiple other, credible witnesses, as well as documentary evidence. It’s a minefield even for the most intelligent and disciplined witness.
“The risk is that Trump would either incriminate himself, commit perjury, or lie — unless he truly has committed no offense and has nothing to fear from telling the truth, the whole truth, and nothing but the truth,” constitutional lawyer Laurence H. Tribe tells me. “I regard that ‘unless’ as extremely implausible.” He adds, “That said, I wouldn’t have have him plead the Fifth. That option isn’t realistically available to a sitting president, who simply can’t afford the steep political price that taking the Fifth would inevitably exact.”
Legally, the president is entitled to plead the Fifth Amendment even if he maintains he cannot be indicted in office. The relevant Office of Legal Counsel opinion makes clear: “Recognizing an immunity from prosecution for a sitting President would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment. . . . [T]he immunity from indictment and criminal prosecution for a sitting President would generally result in the delay, but not the forbearance, of any criminal trial.”
Fordham Law School professor Jed Shugerman reasons, “Thus, he still has the privilege against self-incrimination for that later criminal liability.” Nevertheless, the hullabaloo and the implication of guilt, fairly or not, would likely be politically lethal. Neal Katyal, former acting solicitor general, agrees that while Trump’s Fifth Amendment rights to avoid self-incrimination apply since “any testimony he gives now could be used to incriminate him down the line,” the political consequences would be debilitating. Katyal predicts that, “should he go down that road, it would look Nixonian and catalyze his downfall.”
Knowing all this, it is highly unlikely the special prosecutor would “settle” for a written statement crafted by Trump’s attorneys. He’s going to press to get Trump talking under oath about everything from his drafting on Air Force One of the inaccurate statement explaining the Trump Tower meeting with Donald Trump Jr. and Russian officials to Trump’s financial dealmaking with Russia. If Trump refuses to testify without invoking the Fifth, Mueller would have the option to subpoena him to testify in front of the grand jury, where his lawyer would not be present. If Trump does invoke the Fifth, his presidency would be at risk.
For all of Trump’s boasting that he’s done everything right (100 percent!) and his lawyer’s ludicrous assertions that a president cannot commit obstruction of justice, the prospect for Trump to be interviewed under oath presents the greatest risk to his presidency yet. Look for a lot of political maneuvering, excuse-making and spin. In the end, however, Mueller has the power to compel Trump to testify; Trump might have a theoretical legal right to refuse, but as a practical matter, he in all likelihood will have to testify — and therefore put himself in grave legal and political peril.
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