When faced with a conundrum, it’s often best to go with your first instincts. If your first instinct is to go willingly into an interrogation with a special counsel investigating your presidential campaign, however, a second thought might be in order. Donald Trump apparently came to the same conclusion, telling reporters yesterday that he’s “unlikely” to participate in an interview after emphasizing that no collusion has ever been shown:
President Trump declined on Wednesday to commit to being interviewed by Robert S. Mueller III, the special counsel investigating whether his campaign colluded with Russia to sway the 2016 election, backing off his statement last year that he would be willing to talk to Mr. Mueller under oath.
“I’ll speak to attorneys,” Mr. Trump said during a news conference with Prime Minister Erna Solberg of Norway, when asked whether he would agree to an interview. “We’ll see what happens.”
That answer was a marked change from June, when Mr. Trump defended his firing of the F.B.I. director, James B. Comey, denying that it was related to his handling of the Russia investigation, and said he would be “100 percent” willing to give a sworn statement to Mr. Mueller.
This lead from the New York Times conflates two very different items. A sworn statement is not an interview. Sworn statements are usually documents prepared by a lawyer and a client to state their view of the basic facts in a case. Just as with interrogations, those are entirely voluntary and do not need to be provided to investigators, but at least sworn statements can be carefully crafted to avoid any damaging admissions or set up any potential perjury traps. It also allows attorneys to control the output from clients who might be otherwise inclined to talk too much.
An interview, on the other hand, is a two-way process which leaves the client exposed to all of those dangers. That’s why attorneys would usually advise any client to refuse interviews or interrogations, even if the client was the most disciplined and experienced navigator of conversations … a description that hardly applies to Donald Trump.
Trump apparently got that message:
Mr. Trump, in his remarks, repeated his often-stated assertion that he has essentially been cleared of colluding with Russia. “It has been determined that there’s been no collusion — and by virtually everybody,” he said. “When they have no collusion, and nobody’s found any collusion at any level, it seems unlikely that you’d even have an interview.”
That still leaves open the possibility of a sworn statement, but Mueller probably wouldn’t find that terribly enlightening. He might try to bargain for a written questionnaire that would allow Trump’s attorneys to prepare answers carefully — and more importantly, to discover what Mueller might have up his sleeve before providing any answer at all. Most likely, though, Trump’s lawyers would work hard to stop him from saying anything other than an anodyne sworn statement that offers no legal exposure whatsoever.
But Trump is president, critics will argue, and has a duty to cooperate! Er, not really, especially not if Trump considers the whole thing a “witch hunt,” as he’s publicly claimed. Nor does he have any fewer rights than anyone else facing a criminal investigation. If he doesn’t cooperate with Mueller, Trump might sustain considerable political damage, but he’s probably better off dealing with that than a criminal indictment and/or impeachment for flapping his gums. A refusal to waive Fourth and Fifth Amendment rights does not constitute obstruction of justice, not even for presidents. Congress could still try to impeach on the basis of failing to cooperate because the House determines for itself what constitutes an impeachable offense, but that would be a highly fraught exercise that would easily be characterized as an attack on constitutional rights.
Critics have also offered another hoary argument used far more often than it should be: If he has nothing to hide, why won’t Trump talk to Mueller? Put aside for the moment that the Fifth Amendment was written specifically to moot that argument; the breadth of Mueller’s indictments on Paul Manafort and Rick Gates provides a pretty clear answer. None of those charges have anything to do with Russian interference in the election, but Mueller will likely get a chance to put both men in prison for a long, long time anyway. If that doesn’t convince you, read Ken White’s lengthy explanation at Popehat as to why you’d have to be an idiot to willingly enter into an interrogation with law enforcement already hostile to you, rather than work through your lawyer. Here’s just a taste:
You don’t know if you’re in trouble. You say “I’ll just go and tell the truth.” Well, if you mean “I’ll just go confess to anything I’ve done wrong and take the consequences,” that’s one thing. But if you mean “I’ll just tell the truth because I’ve done nothing wrong and I have nothing to hide,” you’re full of shit. You don’t know if you’ve done something wrong yet. Do you know every federal criminal law? Have you applied every federal criminal law to every communication and meeting and enterprise you’ve engaged in for the last five years? “But . . . but . . . the FBI said they just wanted to talk about that meeting and there was nothing wrong with that meeting.” Dumbass, you’ve got incomplete information. Not only do you not know if there was anything wrong about that meeting, you don’t know if that’s what they’ll ask about. If you’re saying “I’ll talk to them because I have nothing to hide,” you are not making an informed choice.
Read the whole thing, and then pass it along to Donald Trump. Or don’t, because his attorneys already know all this and apparently have convinced him of it.
I’d bet that Trump will produce a sworn statement through his attorneys, but that’s as far as he’ll go. That will allow him to claim he cooperated — and that is a level of cooperation — without putting himself more at risk than necessary, especially from a special counsel that has already demonstrated that he’s not bound to his original mandate.