NBC News reported this morning that President Donald Trump’s lawyers are talking with FBI investigators about a potential interview between Special Counsel Robert Mueller’s team and the president, and even looking for ways to possibly avoid it happening altogether.
The discussions were described by one person with direct knowledge as preliminary and ongoing. Trump’s legal team is seeking clarification on whether the president would be interviewed directly by Mueller, as well as the legal standard for when a president can be interviewed, the location of a possible interview, the topics and the duration. But the president’s team is also seeking potential compromises that could avoid an interview altogether, two of those interviewed told NBC News.
According to the report, Trump’s lawyers began their own internal discussions on the subject “shortly after the president’s former campaign manager, Paul Manafort, was indicted in late October for money laundering in connection with his business dealings with Ukraine.”
To make better sense of the story and understand what it might mean for Mueller’s investigation, I talked this morning with Just Security’s Andy Wright, who before joining the faculty of Savannah Law School worked as associate counsel in the White House Counsel’s Office during the Obama administration. He also served as assistant counsel to Vice President Al Gore in the Clinton White House, where he managed responses to investigations conducted by Congress, the Justice Department, and Office of the Independent Counsel.
His first thought upon reading the story was that this could mean the Mueller team is nearing the end of their current lines of investigation, because you wouldn’t want to sit down with Trump until you’ve gathered all of the information you can and interviewed all of the people below him. When interviewing a potential target of an investigation, a lawyer always wants as many relevant documents and testimony from related witnesses in advance. That is especially true when interviewing a president given the president’s unique role. According to Wright, it is appropriate to make some concessions related to the president’s schedule and some other atmospherics of the interview. Pre-interview preparation is at an additional premium with a witness who has a reputation for dishonesty and sloppy use of language.
“I would guess that Mueller’s team is preparing to interview Trump with both concerns in mind,” Wright said.
With a possible Trump interview on the horizon, Wright said he also thinks “Vice President Mike Pence has either already been interviewed and we don’t know about it, or his lawyers are also negotiating the terms of his interview.”
Mueller would be interested in hearing from Pence because of the role he played in the firing of Michael Flynn, Trump’s first national security adviser. According to the White House, Trump fired Flynn because he lied to Pence about the discussions he’d had with Russian Ambassador Sergey Kislyak in December 2016. Pence told CBS News’ John Dickerson on Jan. 15, 2017 that Flynn told him that he did not discuss the Obama administration’s decision to sanction Russia or expel Russian officials for its interference in the 2016 election with Kislyak. This account was first disputed in early February of last year when the Washington Post reported that Flynn had discussed U.S. sanctions against Russia with Kislyak and therefore what Pence told the American public had not been true. Flynn’s plea deal, made public a few weeks ago, revealed the extent to which Flynn had lied. It also made clear that by no means had Flynn been acting independently or “gone rogue” in his conversations with Kislyak as first portrayed by the White House, raising the question of what Trump and Pence really knew about the contents of those phone calls.
These are the kinds of questions Trump would likely face if and when he sits down with Mueller’s team. Of course, he’d also be asked about his decision to fire FBI Director James Comey, his knowledge of the June 2016 Trump Tower meeting with Russian officials attended by senior members of his campaign team, and likely many more topics being developed by investigators.
For example, it’s very possible that Mueller has obtained Trump’s tax returns by this point, and he’d certainly want to before interviewing him, Wright said. There is likely so much information that Mueller has of which the public is still unaware, he added.
Meanwhile, it’s not a surprise that Trump’s lawyers are exploring options for avoiding a face-to-face interview with Mueller’s team, Wright said. “Trump is a uniquely bad witness.”
Not only is he known to tell willful and deliberate lies, but he’s also very clumsy with his use of language and this can be exploited by prosecutors.
It’s also worth noting that the president’s voluntary witness interview is still subject to the federal false statements statute, 18 U.S.C. Sec. 1001. That is the same crime to which both George Papadopoulos and Flynn have plead guilty.
“If the president knowingly and demonstrably lies during his witness interview, he would be guilty of a felony,” Wright said.
So, of course, it would be to Trump’s advantage to avoid an in-person interview, but Wright said he thinks it’s extremely unlikely that he’ll be able to get away without doing one.
Still, he doesn’t think Mueller will resort to a subpoena, even though he certainly could legally, but for reasons of comity, it’s unlikely to happen.
The precedent was set in United States vs. Nixon, when the Supreme Court ruled that President Richard Nixon had to comply with a subpoena and was ordered to turn over tape recordings and other materials related to the Watergate investigation to a federal district court. He resigned 16 days after the Court’s decision. Similarly, President Bill Clinton provided formal grand jury testimony, via video, in Independent Counsel Ken Starr’s investigation into the Whitewater land deal and Lewinsky affair.
But throughout recent U.S. history, presidents and vice presidents have usually negotiated the terms of voluntary interviews instead of formal testimony.
Clinton and Vice President Al Gore did interviews with the F.B.I. about political fundraising during the 1996 presidential campaign. President George W. Bush and Vice President Dick Cheney sat for a joint interview with the 9/11 Commission in 2004, but as part of the negotiated terms for that exchange, there were no recordings or formal transcriptions.
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