The special counsel’s office wants to talk to Donald Trump about the firings of James Comey and Michael Flynn, but as the president’s lawyers negotiate the terms and scope of a possible interview, they’re left with no easy options.
Balking at an interview, even a narrowly tailored one focused on obstruction of justice questions, risks perpetuating the perception that Trump has something to hide. But agreeing to discuss those matters with Robert Mueller‘s team is risky for Trump, whose statements can be unpredictable and inconsistent. Weeks of dialogue between the sides have yet to resolve a question of extraordinary consequence: Will Trump, like many of his aides before him, get grilled by Mueller’s prosecutors?
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“Obviously this is not just a legal problem, but this is also a political problem,” said Robert Ray, who succeeded Kenneth Starr as the independent counsel in the Whitewater investigation. “Life is not that simple. It requires a delicate balance between weighing the important legal issues that are involved but also recognizing the important political consequences as well.”
The negotiations have been closely held, but a resolution could arrive soon to avert the prospect of a grand jury subpoena, as happened to President Bill Clinton during Whitewater, or a lengthy court challenge reminiscent of the Watergate era.
Mueller’s interest in Trump himself has appeared focused on seminal moments of his administration even amid signs of an expanding, and intensifying, investigation. In the past month alone, Mueller secured the guilty plea of a Dutch lawyer for lying to the FBI, indicted 13 Russians accused of meddling in the 2016 presidential election and secured the grand jury testimony of a well-connected Lebanese-American businessman whose co-operation could open a new front for investigators.
Yet Mueller’s office has so far presented the president with more limited questions.
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Prosecutors trying to establish whether Trump took steps to obstruct justice have conveyed interest in talking with the president about his decision to fire Comey as FBI director last May and about multiple conversations between the two men, including one in which Comey says he was encouraged to end an investigation into national security adviser Michael Flynn, according to people familiar with the investigation. They’re also interested in the February ouster of Flynn and the events leading up to it – the White House was warned that law enforcement thought he was vulnerable to blackmail – and in Trump’s pressuring of Attorney General Jeff Sessions over his recusal from the Russia investigation.
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Those topics may be narrow, but Trump hasn’t always helped himself.
The White House initially said Trump was acting on the Justice Department’s recommendation when he dismissed Comey, but Trump said days later that he’d have done it anyway and was thinking of “this Russia thing” at the time. And though Trump has denied Comey’s account of his conversation about Flynn, a tweet from his account after Flynn pleaded guilty to lying to the FBI appeared to suggest for the first time that the White House knew at the time Flynn was ousted that he had misled investigators about his Russian contacts.
It’s impossible to rule out that Mueller’s team won’t seek answers from Trump on the investigation’s other tentacles, making it dangerous for Trump to be interviewed “because there are lots of things that Mueller is looking at that Trump doesn’t know the answer to,” said Solomon Wisenberg, the deputy independent counsel under Starr who led the grand jury questioning of Clinton in the Whitewater probe.
“This is very dangerous. There’s no question if he were a normal client, you would tell him, don’t go in for an interview,” Wisenberg said.
Though Trump’s legal team has not said publicly what terms they would accept, “if you’re Trump’s lawyers, you want to limit damage. You want to limit both the time and the topic.”
And “if you’re Mueller,” Wisenberg added, “you have to think about, it’s the presidency. You have to show proper respect for the office and the demands of the presidency. You don’t want to take a position that can be seen as unreasonable.”
Trump’s legal team has repeatedly pointed to its co-operation with Mueller, noting that the White House has furnished more than 20,000 documents and made more than 20 officials available for interviews without asserting executive privilege. But though Trump, who has decades of experience with lawyers and sees himself as a street-smart talker, has declared publicly that he wants to sit for an interview, that question is more delicate for his own attorneys. His personal lawyer, John Dowd, has pointed reporters to a 1997 appeals court opinion that created broadly interpreted presidential privilege.
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There’s well-established precedent for presidents to be questioned by government investigators. Ronald Reagan, for instance, provided written responses to questions from an independent counsel investigating the Iran-Contra scandal. George W. Bush was interviewed about the disclosure of a CIA officer’s identity. Clinton offered grand jury testimony.
If Trump and Mueller are unable to reach agreement, Mueller could theoretically subpoena Trump to compel his testimony before the grand jury. Trump might be reluctant for perception reasons to invoke a Fifth Amendment right against self-incrimination, Wisenberg said, but by the same token, “if anybody can pull off explaining to the American people why he’s not going in, it’s Trump.
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“If he doesn’t go in, I think he should make a statement. ‘I’m invoking my right, and here’s why.’ It could be a civics lesson for the country.”
If the calculus were simply a legal one, said Ray, “then you would just listen and be governed by the guidance of criminal defence counsel” not to speak.
Instead, he added, the president is surely mindful that the investigation has shadowed his administration and may conclude that speaking with Mueller may be the fastest way to resolve it.
“That is also a factor, too, and that is just as important to the administration and to the country,” Ray said.
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