What do special counsel Robert Mueller’s 49 questions for President Donald Trump tell us about the state of the investigations into possible obstruction of justice, abuse of power, and Russian “collusion”?
1. Big picture: What do Mueller’s questions indicate about the state of the special counsel’s investigations?
First, Mueller’s questions about collusion show that it is likely that the special counsel has already identified crimes involving collusion–such as a conspiracy to defraud the United States through an evasion of the Federal Election Commission–and Mueller is asking here only about Trump’s possible knowledge and personal involvement. In other words, the questions indicate that there is a “there, there.” That said, we want to be cautious here. We are only identifying this as a likely scenario, though not necessarily one that is certain. There are possible alternative explanations. It may be, for instance, that the special counsel’s office, in an effort to be comprehensive and show no stone was left unturned, would ask Trump, as a subject of the investigation, a series of questions before terminating the investigation. As an example, James Comey writes in A Higher Loyalty that with respect to the Hillary Clinton email investigation, he knew already by early 2016 that it would not likely produce a prosecutable case but that he insisted on pursuing all reasonable leads, including conducting an interview of Hillary Clinton three days before announcing on July 5 that the FBI would not recommend charges. That’s not unusual.
Second, Mueller’s questions show that news reports and commentators suggesting that Mueller’s interview of the President was focused only on obstruction were plainly incorrect. The Russia “collusion” investigation is a key component of the investigation as reflected in at least thirteen of the questions. It is a useful reminder, as the investigation marches forward, to remain skeptical of some of the media analysis on the status of the special counsel’s work.
Remarkably, in a tweet this morning, the president said there were “No questions on Collusion” in Mueller’s 49. We are confident that his defense lawyers see it differently, and are very concerned about the 13-plus questions concerning collusion coming from the special counsel’s office. The fact that Trump would flatly deny even this most obvious truth–of what is contained in the questions themselves–is a further indication of his lack of credibility in this space. Mueller’s team would do well to add another question, “When you have denied there was any collusion, what exactly is your definition of ‘collusion.’’? [For the record, we use the term “collusion” as a shorthand here. As a legal matter, the most relevant crimes appear to be conspiracy to defraud the United States and campaign finance laws.]
2. Big picture: Snap-back to the old-normal
The premise of the questions that Mueller seeks to put to Trump are a startling reminder of how far this president has deviated from the proper norms of respect for the law and legal institutions. The long series of questions involving Trump’s time in office are a catalogue of his accumulated transgressions in action and word. And to see them laid out is startling, because over the first 15 months of Trump’s presidency the public has become inured to Trump’s repeated norm violations: his lies, shifting stories, denigrations of legal institutions and processes. Again and again, Trump has blown through warnings that his actions, statements, tweets matter, are consequential, could compromise legal processes and expose him to legal jeopardy. And now here they are, stacked up by the special counsel who wants to put them all to Trump and ask him, essentially, what were you thinking?
These questions suggest that the special counsel is serving as a bulwark in protection of the baseline understandings of the rule of law and of what is entailed by true abuse of power before Trump entered into office.
3. Two lessons for the House Intelligence Committee
The Mueller questions indicate that the House Intelligence Committee Majority completed its investigation prematurely. It was always likely that the Committee’s decision to end with a determination of “no evidence that the Trump campaign colluded, coordinated, or conspired with the Russian government” would come back to haunt the Committee when further revelations by news outlets and the investigation itself showed otherwise. In particular, one of Mueller’s questions suggests he has evidence about an entire line of questioning that is absent from the House Intelligence Committee’s majority report. Specifically, Mueller asks, “What knowledge did you have of any outreach by your campaign, including by Paul Manafort, to Russia about potential assistance to the campaign?” There is no indication that the House Committee even knew to ask about this line of questions. Regardless of whether the Committee’s Chairman ended his investigation prematurely, developments such as the disclosure of these questions show that the majority’s report may have a short shelf life, soon to be overtaken by other revelations and events.
[As an aside, we should note that many news outlets and commentators are suggesting that this question about Manafort is completely novel and has no reference in earlier press reports about possible forms of collusion. That’s not completely accurate. Back in August 2017, CNN reported that the US intelligence community had intercepted communications between suspected Russian operatives “relay[ing] what they claimed were conversations with Manafort, encouraging help from the Russians” as well as “their efforts to work with Manafort…to coordinate information that could damage Hillary Clinton’s election prospects.”]
4. What can we tell from the fact that a large majority of the questions address obstruction, and a smaller fraction address “collusion”?
Some have concluded that the proportion of questions devoted to obstruction indicates that this remains the real focus of Mueller’s investigation as opposed to collusion. That inference is mistaken. First, there is reason for Mueller to be more detailed and thorough in his line of questions about obstruction as opposed to collusion. Many of the facts surrounding the possible obstruction allegations are publicly known and therefore Mueller is not tipping his hand by asking Trump about those specific actions or statements. With respect to collusion, Trump and his lawyers likely know much less about what Mueller knows, so it makes sense for Mueller to pose broader, less specific questions. Second, to this point about the broad nature of the collusion questions, they appear to be general starting points that could be followed up by many, many more specific questions. Third, as we’ve noted several times in the past, the focus of the obstruction inquiry has always been on intent, which is notoriously difficult to prove. That would explain why Mueller wants to question Trump about what he was thinking each time he acted in a way that could have interfered with the FBI’s investigations. Collusion will likely turn more on proof of actions or agreements: if it is found that there were acts of “collusion” between the campaign and the Russians, the intent will likely be easier to prove. In other words, the two areas of law lead to a different set of questions asked in different sorts of ways. That means it is difficult to draw any insights about the relative state of the two investigations from these two sets of questions .
5. What’s missing from the questions?
Possible financial crimes like money laundering are not a part of the Mueller questions (watch Rep. Adam Schiff’s remarks on the fact that this topic is missing from these questions). There are a couple questions that relate to Trump’s business dealings, but these are evidently tied to potential motives for collusion and opportunities for collusion via business partners. A question on real estate dealings with Felix Sater, for example, are specific to “Russian real estate developments during the campaign,” and most likely relate to Sater’s emails with Michael Cohen (also mentioned by name in the same question) in which the two men discussed the real estate deal in relationship to getting Trump elected. Similarly, Mueller’s question about Trump’s 2013 trip to Russia for the Miss Universe pageant asks about meetings with the Agalarovs and Russian officials at the time. (For more analysis of how the Russian players involved in the Miss Universe business dealings were also the same players involved in the Trump Tower meeting, read Jeffrey Toobin’s sharp analysis.)
We are assuming that this set of questions is, indeed, exhaustive. If Mueller has not posed questions about Trump’s business dealings that could involve independent financial crimes, that would means the special counsel is likely not investigating those matters at all. That’s because Mueller would know he is unlikely to get a second bite at the apple by rolling out a separate set of questions and asking for a second interview with the President. Many commentators previously concluded that some of Mueller’s reported subpoenas and questions of witnesses concerning aspects of Trump’s finances meant the special counsel had crossed Trump’s “red-line” and begun to investigate financial crimes. The 49 Questions are a healthy reminder that such subpoenas and questions may be nothing of the sort but instead involve issues of motive, leverage, and overlapping Russian government connections directly related to the collusion investigation.
Of course, one wild card here is the investigation of the president’s long-time personal lawyer and fixer Michael Cohen. If Cohen’s investigation turns up evidence of serious crimes involving Trump, FBI investigators would presumably be duty bound to pursue it. It bears reminding that Mueller’s questions predate the searches of Cohen’s materials.
6. What are the legal pitfalls and legal perils set up by the questions themselves?
In A Higher Loyalty, James Comey describes how investigators in the Hillary Clinton email case followed standard investigative practice by interviewing Clinton at the end of the investigation when the investigators knew as much as they could about the facts and therefore could put the proper questions to Clinton and assess the veracity of her answers. “[I]nvestigators prefer to master all of the facts before questioning the subject, so that interrogators can ask smart questions and so the subject can be confronted, as necessary, with documents or statements made by other witnesses.” When investigators are properly armed, it creates additional pressure on the witness to tell the truth, and it allows the investigators to know when he or she is lying, which is often a sign of an attempt to cover up behavior the witness knows to be wrong. Moreover, lying during an interview with the FBI is itself a crime (whether or not under oath). During the Trump interview, Mueller and his team would be supremely well-prepared. If Trump lies, they will know it instantly, and Trump will increase his legal jeopardy. Even if Trump were not charged for perjury, those lies and fabrications would indicate a consciousness of guilt for the underlying crime.
One of the places Trump seems most vulnerable to perjury is in answer to the question, “When did you become aware of the Trump Tower meeting?” It would be astonishing if he was not told of this meeting with his three senior campaign officials involving an offer from known associates (Goldstone and the Agalarovs) of assistance from the Russian government. (Steve Bannon and Sam Nunberg, for what that’s worth, have also said they are relatively sure Trump knew). But if Trump tells Mueller he knew back then, in June 2016, about the meeting he will not only contradict what he and Donald Trump Jr. have told the public. He will also contradict what Don Jr. reportedly testified to Congress–creating legal jeopardy for his son.
7. Why does Mueller ask about any efforts taken “to reach out to Mr. Flynn about seeking immunity or possible pardon”?
As one of us (Alex) wrote previously, if Trump’s lawyers dangled the possibility of a pardon for Flynn, with Trump’s knowledge, that could itself become part of an obstruction case. Although the president’s power to pardon is near absolute, dangling a pardon presents different issues because unlike a pardon it is done secretly and it’s aim appears to be to encourage someone not to cooperate with law enforcement (whereas when someone is pardoned, they become free to be subpoenaed to testify without fear of self-incrimination and the president must face the public costs in issuing the pardon). If Trump worried that Flynn might cooperate, a suggestion that Flynn might be pardoned down the road could encourage him to keep fighting and not strike a plea deal with the prosecutors. Such a dangle, therefore, could be part of a larger effort to block the FBI’s investigations and to impede those investigations reaching Trump and other members of his inner circle.
[As an aside: while it may be that a pardon provided with an improper purpose cannot be undone, there is precedent for investigating a president to assess whether a crime was committed in connection with a pardon that he granted. In his book, Comey tells how when he became the U.S. Attorney in Manhattan, he inherited an investigation into whether President Clinton’s pardon of Marc Rich was the result of a “corrupt bargain.” (pp. 159-61). In the end, the investigation was closed without any charges being put forward].
Similarly, regarding immunity, one of us (Alex) wrote in a previous Just Security essay that an early gambit by Flynn’s attorney to get him Congressional immunity to testify was also likely an effort to gum up the criminal investigation of his client. Under precedent dating back to the Oliver North and John Poindexter cases, a grant of immunity from Congress would likely have made it impossible for a criminal case to proceed against Flynn. Notably, Trump tweeted at the time that Congress should grant the immunity to Flynn. It is admittedly speculative on our part, but Mueller’s question to Trump about whether he reached out to Flynn regarding seeking “immunity” suggests that Flynn might have told Mueller that the whole immunity ploy was Trump’s idea to begin with. The effort to obtain immunity via congressional testimony would not itself be an illegal obstruction of the criminal investigation, but it would add to the picture of an organized effort to achieve that desired result (by both legal and illegal means). In other words, it could help prove the elusive mental element in a case of obstruction.
8. Some commentators suggest Mueller’s questions indicate Jared Kushner is in legal jeopardy. Is that a well-founded inference?
We don’t see it. Kushner may, indeed, be in legal trouble, but Mueller’s questions don’t specifically show it. The one question identifying Kushner involves his reported attempt to set up a backchannel with the Russians after the election. We do not see why that alone would mean a big takeaway from Mueller’s questions is Kushner’s legal jeopardy. It is also true that Kushner was reportedly only interviewed for an hour by Mueller, but we do not believe that added factor is reason to conclude Kushner is now a target. For example, Kushner may be quietly cooperating with the special counsel, he may have pleaded the Fifth (and would have no incentive to disclose that fact), he may have been interviewed more recently without reporters knowing it, and he may be still set to interview later. There just is not enough here to suggest much one way or the other about Kushner’s legal situation. That said, there may be other indications, separately reported and well-known, that indicate Kushner does face serious legal exposure. Mueller’s questions don’t.