A direct quote here would have been nice, but oh well. Either way, Rudy doesn’t mean to imply that Mueller is preparing to *clear* Trump. That may be true, but since POTUS and the special counsel are still haggling over an interview, there’s no way to know right now. At best, Mueller may might be leaning towards clearing him but wants him to resolve some doubts via Q&A. At worst, he already has probable cause of obstruction and wants to see if Trump will incriminate himself further.
What Rudy means, assuming he’s telling the truth, is that Mueller has ruled out indicting Trump as a constitutional matter. Read Paul Rosenzweig’s piece from late January for the ins and outs of whether a president can be indicted by his own Justice Department. Institutional opinion at the DOJ seems to be that he cannot. If you want to send the president to prison, you need to remove him from office first. Paul Ryan may wake up one day soon to find Mueller’s report on his desk accusing Trump of obstruction. What does the House do then? My guess: Unless he also accuses Trump of some form of criminal conspiracy with Russia, the House GOP will say that it’s absurd to impeach the president for obstructing justice in a case where he hasn’t been accused of an underlying crime.
Anyway, the news here isn’t that Mueller is unlikely to indict Trump, it’s that — if you believe Rudy — his team has said something to that effect to Giuliani himself.
Mueller’s investigation has operated largely in secrecy, with the public getting only glimpses into its operation through witnesses who are questioned or when indictments and guilty pleas are unsealed. But Giuliani suggested that a recent conversation with Mueller’s team led him to believe that the special counsel, citing a Justice Department opinion, had ruled out the possibility of trying to indict a sitting president.
Another interesting bit:
Giuliani demurred when asked if Trump would consider it a “red line” for his children to be interviewed. Ivanka Trump and her husband, Jared, Kushner, both worked on the campaign and are senior advisers at the White House, while Trump’s adult sons, Don Jr. and Eric, were also leading figures on the campaign. Giuliani said he did not expect those interviews with Mueller to take place.
“Our understanding is that he’s pretty much finished,” Giuliani said. “As far we know, we’re basically the last witness.”
That seems unlikely. Kushner has already been interviewed by Mueller’s lawyers but Mueller certainly would want, or even need, to speak to Don Jr to hear firsthand his accounts of the meeting with the Russian lawyer in Trump Tower in summer 2016 and the drafting of his press release with POTUS and Hope Hicks after the meeting was revealed by the NYT last year. The first is a key part of the collusion probe, the latter is part of the obstruction probe. It’s farcical to think the special counsel would pronounce his investigation over before trying to speak to a witness as central as Don Jr. The only reason he’s held off this long, I’m sure, is because he suspects President Loose Cannon will fly into a rage if he subpoenas Junior and fire him.
But it’s going to happen sometime. Indicting Junior or clearing him without attempting to speak to him would delegitimize whichever conclusion Mueller reaches about him. In fact, if you believe WaPo, Trump’s inner circle is particularly nervous about Don Jr and Kushner getting pinched:
“Everyone seems resigned to just buckle up and get through whatever we’ve got to get through for it to reach its conclusion,” one White House official said.
Many Trump aides and associates say they are confident the president will be exonerated. But they privately express worries that the probe may yet ensnare more figures in Trump’s orbit, including family members. There is particular worry about Trump’s eldest son, Donald Trump Jr., and Jared Kushner, his son-in-law and a senior adviser.
I assume Mueller’s waiting to subpoena Junior until he has a firm answer from POTUS on his own interview one way or another. Maybe he thinks he can get to probable cause on obstruction by Trump even without Junior’s testimony. If so, he might prepare a draft report on that, laying out his findings, and then seek to subpoena Junior. If POTUS turns around and fires him, the draft report would be ready for his staff to send to Rod Rosenstein (or whoever replaces him after he resigns over the Mueller firing). Then whoever replaces Mueller would take up the question of what to do about Don Jr. Whatever happens, though, he has to try to talk to Trump the younger and POTUS will certainly be angry about it, even by his usual standards. We’re headed for a blow-up, probably very soon.
Although, speaking of which, Giuliani made an interesting point about the timeline. Initially, he said, he was hoping to resolve the question of whether POTUS would sit for his own interview with Mueller by Thursday of this week, as that’s the one-year anniversary of Mueller’s appointment. Now, because of the importance of the North Korea summit, they’re pushing the interview question off until next month. Trump has spent the past year demanding a speedy end to the Russiagate probe, but as we get closer to the midterms it may pay for him to start delaying a bit. The nearer we are to Election Day, the more skittish Mueller will be about ending up in a position a la James Comey where he’s influencing people’s votes by springing major investigative developments on them shortly before they go to the polls. If Trump can come up with a string of excuses to take his focus off the interview matter, maybe Mueller will “go dark” until after the election.