As an American, I would love to see President Trump interviewed by special counsel Robert S. Mueller III. The country would be better off securing the president’s testimony on a matter of such clear public concern. But as a former federal public corruption prosecutor, and based on the events of the past few months, I’ve become increasingly convinced that the president will refuse to submit to an interview. Unfortunately, it’s the rational choice.
If the president agrees to be interviewed, it seems extremely likely he will lie about something. Not because the interview is unfair or a “perjury trap,” but simply because of the president’s well-documented casual relationship with the truth. The president’s own attorneys reportedly cited their fear that he would lie as a reason to advise him against the interview.
Lying to Mueller would expose the president to criminal charges, either in an indictment or as a potential basis for impeachment. That’s true regardless of whether Mueller finds any underlying criminal conduct involving conspiracy with Russians, election tampering, money laundering or anything else. So legally there’s a huge potential downside to the interview for Trump, and very little upside.
If Trump refused to be interviewed, the ball would be in Mueller’s court. He would have to decide whether to subpoena the president to testify before the federal grand jury.
It’s not clear Mueller would take that step. He has to assume that a president who refuses a consensual interview will not willingly stroll into the grand jury. Trump’s lawyers would likely mount various legal challenges to the subpoena. Although precedent suggests Mueller ultimately would win that battle, there are no guarantees. And it would mean months of delay — even if the case were fast-tracked to the Supreme Court.
If the president ultimately did end up in the grand jury, he could then assert his Fifth Amendment right not to incriminate himself — and Mueller might still be left with nothing. Or the president could testify, and even if it did not go well, he would have delayed the investigation and any possible consequences, perhaps even past the midterm elections. Mueller may well decide he’s better off completing his work without spending significant time and resources seeking presidential grand jury testimony that might never come about and might be untruthful and unhelpful if it does.
If Mueller decides not to pursue a subpoena, then the president’s refusal to cooperate becomes simply another data point in any final product from Mueller. That’s bad — but at least refusing to be interviewed is not illegal. It’s better than the alternative of having false statements from the president himself become part of the special counsel’s case.
So Trump’s rational move is to refuse to be interviewed. Maybe his lawyers will offer to answer written questions as a “compromise,” but those answers will be crafted by the attorneys, cannot be cross-examined and will not put Trump in jeopardy. The president can save face by claiming he was eager to step in the ring mano a mano with Mueller but his lawyers told him he shouldn’t. (You know how lawyers are.)
Even if refusing to cooperate or taking the Fifth makes sense as a legal strategy, you might expect it to be political suicide. But this president has repeatedly demonstrated his ability to weather political storms that would have capsized others.
Events over the past year (the dust-up over the Nunes memo is just the latest example) provide no reason to believe the president will pay a meaningful political price for refusing to cooperate. You can hear the interviews now: Republicans on Capitol Hill will say that while it’s “unhelpful” that Trump won’t agree to be interviewed, “on the other hand, there are some serious questions about the fairness of Mueller’s investigation . . . ”
And this is where the sustained attacks on Mueller and the FBI come into play. Trump and his allies will justify his refusal to cooperate or even his taking the Fifth by attacking the legitimacy of the investigation itself. They will claim Trump would not be treated fairly by Mueller and the “deep state” conspiracy that is out to get the president. And if recent history is any guide, this argument will resonate with the president’s base and his allies in right-wing media and Congress.
The president’s political cover on Capitol Hill could change, of course, if the Democrats capture one or both houses of Congress in the midterm elections. But what’s going to happen in November is likely going to happen anyway. The question for Trump is whether cooperating with Mueller now is likely to make things better. The answer is almost certainly no.
It’s depressing to contemplate what this says about our current political situation and the lack of respect for the rule of law. But stonewall, delay and attack the investigators — that seems to be the president’s most likely course.
I’d love to be proved wrong. Maybe the president and his lawyers will conclude he has nothing to fear from an interview, or that it’s his least bad option. Maybe Trump will insist on facing off with Mueller regardless of what his lawyers advise, so he doesn’t appear to be “chicken.” Anything is possible. But at this point, refusing to submit to an interview is almost a no-brainer.