That’s the advice, eh? Don’t talk too much with a special counsel hoping to nail your hide to the wall? ABC News reports that Donald Trump’s attorneys want to limit the scope of any interview the president grants to Robert Mueller and his investigators, but that prompts this question — why would attorneys advise a president to cooperate at all?
President Donald Trump’s close advisers and lawyers have cautioned him against sitting down for a wide-ranging interview with special counsel Robert Mueller and his team, sources tell ABC News. …
The president’s lawyers, according to sources familiar with internal discussions, have said the president shouldn’t sit down for a wide-ranging interview, and that any interview should have parameters. One option sources say is being discussed with the president is to have him answer questions in writing and avoid a sit-down interview completely.
Advisers reportedly fear the president could contradict himself during a wide-ranging interview.
Gee, ya think? The New York Times also notes that their objection is to a “wide-ranging interview,” but that might be a problem in a narrow interview too, or perhaps even the written questionnaire that Trump’s attorneys apparently prefer. Just like in any investigation, the subject of an interview doesn’t know everything their interrogators do and don’t know where the land mines may lie in those questions. It’s impossible to know whether an answer contradicts evidence already in hand, which could create a situation where a subject unknowingly offers an incorrect answer that might land them in legal trouble.
That’s why anyone who finds themselves a potential target in an investigation has to tread carefully when deciding whether to voluntarily answer questions. Just ask Michael Flynn, who apparently assumed FBI investigators were there to brief him on national security concerns and ended up charging him with making false statements. The Fifth Amendment gives everyone the right, from the most obscure citizen to the president, the right to refuse to answer questions without legal jeopardy. There might be political consequences to that action, but it’s a lot easier to deal with those than with an indictment.
In fact, as Andrew McCarthy pointed out last week, it’s precisely that kind of political pressure that should put presidents beyond the demand of special counsels:
Every other independent-counsel investigation in which an American president has been a subject was triggered by an actual crime. Those presidents were on notice of the contours of the probe, and of the criminality that rendered it appropriate for a prosecutor to be appointed and for a president to be questioned. That is not the case in Mueller’s probe. It has been formally described as a counterintelligence investigation, which is a national-security inquiry about a foreign country’s designs against the United States, not a criminal investigation targeting an American for prosecution on a known offense.
No competent lawyer would allow the lowliest criminal suspect in the country to testify before a grand jury without a description from the prosecutor of precisely what crime is being investigated, and an explanation of the suspect’s status — target likely to be indicted, subject potentially indictable, or mere witness not in jeopardy of being charged. It would be absurd for a prosecutor to seek testimony from the president of the United States without a compelling demonstration of (a) probable cause that a crime has been committed, and (b) need for information that only the president is in a position to provide.
By the way, that includes testimony in the form of answers to written questions. To be sure, written interrogatories would give Trump and his counsel more notice of the prosecutor’s case than they now have. That would alleviate some, but by no means all, of the concern about making assertions that could be grist for a false-statements charge. But it does not solve the more fundamental problem: The burden should be on Mueller to demonstrate the necessity of questioning the president in any form, not on the president to provide reasons for not submitting to questioning. Being president is reason enough.
Trump the man should avoid Mueller’s highly skilled, highly aggressive prosecutors. Trump the president should not be asked to meet with them in the first place.
So why are Trump’s lawyers trying to negotiate an interrogation with Mueller at all? The only reason can be that Trump wants to take on Mueller and his interrogators. He must feel so supremely confident in his innocence that he wants to show the world that Mueller can’t touch him at all. That’s a yuuuuuuuuuge gamble, needless to say, and might wind up costing him the presidency even if no criminal collusion can be established. If Mueller gets a materially false statement out of Trump, Mueller will have an obstruction charge that even a Republican-led House would find tough to ignore.
For both practical and precedential reasons, Trump needs to listen to better advice. Politely decline an interview in any form and let the political chips fall where they may.
Speaking of which, conservatives these days seem conflicted on all sorts of issues, but this one seems pretty fundamental. Since when is “if you have nothing to hide you should open yourself to a perjury trap” an originalist Constitutional model?
.@realDonaldTrump should sit for an interview with the Special Counsel. If he’s done nothing wrong, then he’ll have no trouble keeping his story straight. It’s just one of the benefits of truth. https://t.co/qFqMUn0Aa2
— Evan McMullin (@Evan_McMullin) February 6, 2018