Still? The question in this instance shouldn’t be whether “everything is on the table,” as the Wall Street Journal reported yesterday. It’s whether anything should be on the table.
And yet, here we are … again:
President Donald Trump’s lawyers are considering ways for him to testify before special counsel Robert Mueller, provided the questions he faces are limited in scope and don’t test his recollections in ways they say could unfairly trap him into perjuring himself, a person familiar with his legal team’s thinking said.
Mr. Trump’s legal team is weighing options that include providing written answers to Mr. Mueller’s questions and having the president give limited face-to-face testimony, another person familiar with the matter said. “Everything is on the table,” this person said.
These leaks keep coming from the Trump side, not Mueller’s side, although the latter hasn’t been as “leak-free” as has been suggested at times in the media. In part, this is due to Trump himself, who has been publicly declaring his willingness to testify in the special counsel probe since shortly after Mueller’s appointment. In June of last year, the White House didn’t need to leak that pledge; Trump made it in a press conference.
Save the tape — Trump denies he told Comey to let Flynn investigation go or asked for loyalty
Willing to testify under oath?
Trump: “100%” pic.twitter.com/oDeIrAy694
— Bradd Jaffy (@BraddJaffy) June 9, 2017
That has Trump and the White House boxed in — politically speaking, anyway. Legally, Trump has no obligation to answer any of Mueller’s questions, at least not yet. That’s true of anyone who hasn’t been charged or subpoenaed, and even then there are options to refuse to speak. Having pledged repeatedly to testify under oath, however, Trump has created a political conundrum. “If it were exclusively a legal judgment, no one would ever do it,” former special counsel Robert Ray tells the WSJ, “but there’s a political aspect to this.” That’s why it keeps coming up again, and again, and again.
However, what’s to say that they’re serious? Putting the notoriously voluble and inconsistent Trump in a room with investigators is such a bad idea that it almost seems as though the Trump team doth protest too much about his cooperation with Mueller. They might be shaping the political battlefield by repeatedly leaking all of the ways in which they might consider having him testify, so that when Trump refuses, they can argue that Mueller was too unreasonable in his demands. Will that work? Dunno, but it has to be better than allowing Trump to create perjury traps for himself. Political peril still beats legal peril.
What leverage does Mueller have? He could subpoena Trump or get the grand jury to do it, but that has its risks:
A subpoena from Mr. Mueller compelling Mr. Trump to testify could increase pressure on the president to answer questions. …
Should Mr. Trump face a subpoena, he could try to quash it, setting in motion a lengthy legal proceeding that could deprive Mr. Mueller of an interview any time soon. Guy Lewis, a former U.S. attorney in Florida who has worked with Mr. Mueller in the past, said, “If that’s not two years of delay and litigation, up and back to the Supreme Court, then I don’t know what is.”
There are two problems with a subpoena. First, as the WSJ notes, is a precedent in a probe of then-Agriculture Secretary Mike Espy during the Clinton administration. In 1997, the DC appellate circuit ruled that executive privilege applied to White House records, limiting access to an independent prosecutor. That would apply even more directly to discussions between the president and his advisers, especially on an action — terminating the FBI director or inquiring about an investigation — that’s not illegal in and of itself and within the president’s authority.
The second issue might be more existential to Mueller — a need to demonstrate an actual crime for the special counsel to pursue, let alone subpoena a sitting president to investigate. As Andy McCarthy wrote last week, that might prompt a counterclaim against the legal basis for Muellers’ probe at all:
Under Section 600.1, a special counsel may be appointed only if the acting attorney general “determines that a criminal investigation of a person or matter is warranted,” and that a “conflict of interest” would be presented if the Justice Department were to handle “that investigation or prosecution” in the normal course. There are two salient things to notice about this: (a) The regulation does not authorize the appointment of a special counsel to conduct a counterintelligence investigation (which makes sense since counterintelligence probes are not lawyer work and prosecutors are not ordinarily assigned to them); and (b) there must be grounds to believe a crime warranting investigation has been committed before the special counsel is appointed.
Pace Gabe, the regulations do not authorize the acting attorney general to assign a special counsel to look for an unknown crime. They require that concrete grounds for opening a criminal investigation pre-exist the special counsel’s appointment. Gabe highlights the regs’ requirement (in Section 600.4(a)) of a “specific factual statement of the matter to be investigated.” But that statement is supposed to be a description of the grounds for a criminal investigation that the Justice Department has found under Section 600.1 — i.e., the crimes the Justice Department is too conflicted to investigate and prosecute.
Rosenstein’s order thus fails. It purports to assign Mueller a counterintelligence investigation, which the regs do not permit. It further invites Mueller to root around to see if any unknown crimes were committed, in contrast to the regs, which require that the known crimes be spelled out — it is these known crimes that are supposed to form the basis for the Justice Department’s conflict, and, hence, for the special counsel’s appointment. Since these are defects in the appointment order, Gabe does not repair the order by quoting it. …
Could Rosenstein have properly appointed Mueller to investigate Trump for obstruction based on, say, the Flynn matter? Perhaps, although Rosenstein would presumably have had to grapple with the preliminary question of whether the federal obstruction statutes cover FBI investigations. But assuming arguendo that this hurdle could be cleared, Rosenstein would still have had to comply with the regs: Cite the purported Flynn obstruction as the basis for appointing a special counsel, then describe it in the statement of the special counsel’s jurisdiction. Again, Rosenstein did not do that.
Paul Manafort is already challenging the legal basis for Mueller’s indictment involving alleged crimes that had nothing to do with Russian “collusion.” If Trump gets a subpoena, that avenue might open up as well. Even if a court isn’t inclined to order the termination of Mueller’s investigation, it’s not likely to approve of a fishing expedition for a special counsel whose legal basis is already shaky and who hasn’t actually produced evidence of a crime to investigate. That would set up a tremendously damaging precedent, one that Trump should resist on that basis alone.
If Trump doesn’t volunteer for testimony, then it’s almost certainly not going to happen. And it’s at least a reasonable guess that the leaks about negotiations are a smokescreen for an eventual refusal, if only because an agreement to testify is such a mind-bogglingly stupid idea.