Why talking to Mueller could be a minefield for Trump

One threat to Trump posed by open-ended questions is that, as his Twitter diatribe showed, he has a history of saying demonstrably false things

Washington: President Donald Trump has insisted he is eager to make the case to the special counsel, Robert Mueller, that he has done nothing wrong. But the questions that Mueller wants to ask show why the president’s lawyers have countered that an interview would be a minefield for Trump.

It is not just that the president has a history of telling demonstrable falsehoods, while the special counsel has already won four guilty pleas for the crime of lying to investigators. The questions would pose additional challenges for Trump, legal experts said.

Many of Mueller’s questions, obtained and published by The New York Times, are so broad that Trump would need a detailed command of a range of issues. And, complicating efforts to try to adequately prepare him for such an encounter, the president’s lawyers do not know everything that the special counsel has learnt.

“This list reinforces the notion that the president should not go in for an interview with Mueller,” said Sol Wisenberg, a white-collar defence lawyer who was a deputy independent counsel in the Whitewater investigation. “Mueller knows all kinds of things — we don’t know exactly what he knows — and these are both broad and detailed questions, making real landmines.”

On Tuesday, Trump denounced the publication of the questions in a pair of Twitter posts. He called it “disgraceful” and again pronounced Mueller’s investigation a “witch hunt.” He also incorrectly declared both that none of the questions were about “collusion” — in fact, many centred on his campaign’s ties to Russia — and that it would be “hard to obstruct justice for a crime that never happened.” (Efforts to obstruct an investigation can be prosecuted even if no underlying crime is found.)

Most of the dozens of questions are about now well-known events, like the June 2016 meeting at Trump Tower between top Trump campaign officials and Russians promising damaging information about Hillary Clinton. While a few touch on Trump’s business dealings — in particular, campaign-era talks about a proposed real-estate project in Moscow — they do not signal that Mueller is examining Trump Organisation finances more broadly or contain other major surprises.

In many instances, Mueller wants Trump to explain his knowledge of, reactions to or communications about private events where there were other witnesses, such as his campaign’s internal discussions of Russia-related matters and his conversations as president with and about James Comey, whom he fired as FBI director.

The questions were drawn up in March and reflect no events since then, leaving open the possibility that they may have changed as the president’s lawyers and the special counsel continued to negotiate over an interview.

Moreover, the list of questions is most likely a starting point for follow-ups as investigators try to iron out ambiguities. Paul Rosenzweig, another former Whitewater prosecutor and a senior fellow at the R Street Institute, a conservative and libertarian research organisation, said they could be seeking such details as: What was the source of your knowledge? When did you find out? Who told you and what exactly did they say?

“You don’t just ask, ‘What did you know about the Trump Tower meeting?’ and he tells you the answer,” Rosenzweig said. “With 48 questions like that, that’s honestly a two-day interview. That’s 12 hours of questioning.”

And in part because former Trump associates who have pleaded guilty are cooperating with the inquiry, the White House does not know what evidence the special counsel has obtained that could contradict Trump, Wisenberg said. Because of that, he said, the president’s lawyers were in a worse position to prepare their client for an interview than President Bill Clinton’s team was in the Whitewater investigation.

“It’s totally different than when President Clinton came into the grand jury room to talk to us,” he said. “He pretty much knew everything we knew. It was far less risky.”

Mueller’s authorities remain uncertain; it is not clear that he could charge Trump with a crime or send an impeachment referral report directly to Congress. That has left his potential endgame unclear if he does conclude the president committed some kind of wrongdoing.

But the list of questions indicates that the investigation remains a significant threat to Trump even if the president were to be honest about everything in any interview.

The questions zero in on Trump’s possible liability — and little else, noted Samuel Buell, a Duke University criminal law professor and a former federal prosecutor who helped lead the Enron investigation.

“‘What did you know and think?’ and ‘When did you know it and think it?’ are not questions you ask someone to determine whether they have information about someone else’s commission of a crime,” Buell said. “They are questions you ask to determine whether the person you are questioning had the guilty mind required to break the law.”

Some of the questions may present an opportunity for Trump, however. Asking him to explain what he meant when he told NBC News that he was thinking about the Russia investigation when he decided to fire Comey, for example, would permit Trump to back-pedal on the remark or explain it away, perhaps by saying he did not really mean it.

Alan Dershowitz, a Harvard Law School criminal law professor who has frequently defended Trump on television and is informally consulting with him, told CNN on Monday that he thought Trump could invoke executive privilege to refuse to answer questions about his thinking when he decided to exercise constitutional powers.

But the problem for Trump is that those questions, Dershowitz said, were the “easy” ones. By contrast, Trump could not invoke the privilege about events that took place before he became president, like his business dealings.

Were Trump’s own lawyers behind the ‘disgraceful’ leak of Mueller’s questions?

President Donald Trump is fuming about the “disgraceful” leak of 49 questions that Special Counsel Robert Mueller hopes to ask him in an interview.

“Clearly a leak by the special counsel’s office,” Sean Hannity declared on his Fox News show Monday night, shortly after the New York Times published the questions.

The rightful target of the president’s ire actually might be his own legal team.

The Times reported that the questions were “read by the special counsel investigators to the president’s lawyers, who compiled them into a list. That document was provided to the Times by a person outside Mr. Trump’s legal team.”

Based on the Times’ account, we can conclude that the leak did not come from the special counsel’s office — unless Trump’s lawyers shared their document listing Mueller’s questions with Mueller’s investigators, which would make little sense.

It appears that one of two things happened: Trump’s legal team was careless with the list, allowing it to fall into the wrong hands, or the president’s lawyers orchestrated a James Comey-style disclosure through an intermediary.

We can’t completely dismiss the carelessness theory. After all, two of Trump’s attorneys imprudently discussed their work within earshot of a Times reporter at a Washington, D.C., steakhouse in the fall, leading to this accidental scoop about the legal team’s internal disagreements. Perhaps a Trump lawyer left the question list on a restaurant table.

There is reason to suspect that Trump’s lawyers intended to make the questions public, however. The most likely motive for such a leak would be to dissuade the president from sitting down with Mueller. The Washington Post reported early last month that Trump was feeling confident after being told he was not then a criminal target of the investigation:

Other advisers, however, noted that subjects of investigations can easily become indicted targets — and expressed concern that the special prosecutor was baiting Trump into an interview that could put the president in legal peril.

John Dowd, Trump’s top attorney dealing with the Mueller probe, resigned [in March] amid disputes about strategy and frustration that the president ignored his advice to refuse the special counsel’s request for an interview, according to a Trump friend.

More recently, The Post reported that Trump became less inclined to grant an interview after the FBI raided the office, home and hotel room of his longtime personal lawyer, Michael Cohen.

Nevertheless, Trump’s attorneys may remain concerned that the president will be tempted to sit for Mueller, believing he can talk his way out of any potential trouble. Leaking Mueller’s questions to the Times — knowing the list of inquiries would be discussed at length on cable news — would be one way to try to hammer into Trump’s head the possible risk.

The Post reported last month that “aides sometimes plot to have guests make points on Fox that they have been unable to get the president to agree to in person.”

One senior administration official told Dawsey that Trump “will listen more when it is on TV.”

If Trump’s lawyers have been unable to convince him that talking to Mueller would be a bad idea, then perhaps they decided to give TV a shot and make the questions public.

The Washington Post


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