Special counsel Robert S. Mueller III indicated this week that he is willing to reduce the number of questions his investigators would pose to President Trump in an interview, renewing negotiations with Trump’s lawyers about a presidential sit-down after an extended standoff, according to two people briefed on the negotiations. . . .
For months, Mueller has been seeking to question the president as part of his investigation into Russia interference in the 2016 campaign, which is also examining whether Trump has sought to block that probe.
In a letter sent Monday, Mueller’s team suggested that investigators would reduce by nearly half the number of questions they would ask about potential obstruction of justice, the two people said. It’s unclear which topic or topics would be left out.
It is unsurprising that discussions have continued. “Both sides have an incentive to avoid litigation,” explains Susan Hennessey of the Brookings Institution and the Lawfare blog. “Even if Mueller thinks he will ultimately prevail, it would cost a lot in time and resources. So he would be willing to compromise — to a degree — in order to get Trump to voluntarily sit for an interview.” She adds: “Likewise, Trump doesn’t want to go through litigation, especially since he might lose and end up hauled in front of a grand jury. So it’s better for him to reach a compromise as well.”
Laurence H. Tribe, a constitutional scholar and Supreme Court litigator, points out that a favorable outcome for Mueller is no slam dunk at the Supreme Court. Therefore, Tribe reasons, “he might want at least to try reaching a resolution, even if suboptimal, that doesn’t require going all the way to the Supreme Court, where he might not find five justices prepared to follow U.S. v Nixon, at least in the context of subpoenaing more than documents.” (A unanimous court in U.S. v. Nixon held that President Richard M. Nixon could not shield audio tapes of Oval Office conversations from a subpoena on the grounds of executive privilege, but instead had to comply with a subpoena like any other American.
Former White House ethics counsel Norman Eisen, who has litigated both with and against Mueller, provides some additional reasons. “In this case, he recognizes that for both legal and political reasons he must build a record that he tried everything possible in order to get Trump to testify,” Eisen tells me. “He surely knows that Trump will likely reject any live questioning, no matter how limited.” He continues: “As soon as he opens his mouth, he is going to either implicate himself in obstruction if he tells the truth or commit perjury if he sidesteps. He may do both within the space of the first 10 minutes!”
“Trump will reject all reasonable offers,” Eisen reasons. “Why not propose some limitations? Then when Mueller either seeks a subpoena or simply decides to press ahead and issue a report without one, he can say he did his best. ”
We should be wary of jumping to conclusions as to a grand strategy behind which questions Mueller might eliminate. Simply because some questions aren’t asked doesn’t mean they aren’t critical. Mueller may have all the evidence he needs on certain points. Mueller has gathered written evidence and testimony from corroborating witnesses; Trump’s testimony may be superfluous on certain matters. Hennessey points out that caution is warranted since “all of our information about possible compromise agreements are coming from Trump’s legal team and they are not especially reliable narrators.”
What would seem to be most valuable for Mueller to ask? Intent is always the sticky issue in an obstruction charge. Former prosecutor Harry Litman advises that the most important objective for Mueller is “to resolve state of mind question for obstruction charge, and to give Trump the chance to dissuade him of corrupt purpose.”
In any event, it is very likely Trump’s lawyers won’t allow him to sit for any questioning. The problem is not the scope of the inquiry but the pathological dishonesty of their client.