Ron Sachs/dpa/picture-alliance/Newscom
The media have become obsessed with a hypothetical conversation—one that might, or might not, take place between the president of the United States and a special counsel appointed by the Department of Justice. It's a will-they-or-won't-they worthy of a rom-com, with the unusual twist that there is genuine uncertainty about the result. Special Counsel Robert Mueller is implacable and President Donald Trump is unpredictable. Everyone has an opinion, and they're being sprayed across cable news and the editorial pages.
I gave up early on predicting what this administration will do. But I say this with complete confidence, based on my 23 years in federal criminal practice: There is absolutely no good reason for Trump to talk to Robert Mueller and his investigators voluntarily.
To understand why, you have to understand the goal of a conversation like the one Mueller proposes.
The president is no mere witness. He is at least a subject, and likely a target, of the special counsel's investigation. In federal criminal parlance, a witness is someone not suspected of wrongdoing who has useful information, a subject is someone suspected of wrongdoing who may well be charged if the evidence supports it, and a target is someone whose indictment is actively sought as a purpose of the investigation. When the feds interview a subject or target, their goal is not mere information-gathering or fact-finding or "clearing a few things up." Their goal is the hunt.
In the old westerns, rather than take the trouble of hauling mustachioed miscreants to desultory trials, lawmen would often provoke them into drawing first, thus justifying shooting them down where they stood. A modern federal interview of a subject or target is like that. One purpose, arguably the primary purpose, is to provoke the foolish interviewee into lying, thus committing a new, fresh federal crime that is easily prosecuted, rendering the original investigation irrelevant. Title 18, United States Code, Section 1001, which makes it a felony to lie to the feds, is their shiny quick-draw sidearm. This result not an exception; it is the rule. It happens again and again.
Consider George Papadopoulos. The special counsel secured his guilty plea not for improper contact with the Russians but for lying about that contact to the FBI. Consider Michael Flynn. He too pled guilty not to unlawful contact with Russians but to lying to the FBI about that contact. Consider Scooter Libby, or Martha Stewart, or Dennis Hastert, or James Cartwright, all taken down by the feds not for their alleged original misconduct but for lying about it. Even when catching someone in a lie isn't enough to force them to plead guilty, it can add charges to a case. Consider Paul Manafort and Richard Gates, charged not just with substantive crimes but with lying to the FBI about them.
The feds love this tactic because it's so effective with sophisticated, affluent, powerful people. Such people can afford teams of lawyers, yes. But being sophisticated, affluent, and powerful often means being arrogant and overconfident too. "Masters of the Universe" believe they can talk their way out of anything, just as they have talked their way to their lofty status. This is the pride that goeth before the fall, and it reflects a fundamental misunderstanding of what's happening in one of these interviews.
When special counsels or FBI agents ask questions of one of these powerful people, they are not fact-finding. They've already done their homework. They've already gathered facts—almost certainly many more facts than the interviewee knows. They are asking questions the answers to which they can already prove, hoping that the interviewee will tell a provable lie, and thus commit a crime, or at least lock themselves into a feckless story that ties their hands later. The law that makes it a crime to lie to federal investigators does not require the lie to fool the investigators for a nanosecond. A lie must be "material" to be criminal, but that only means that the lie is the kind of statement that could conceivably influence the government, not one that actually did. The FBI can roll up with irrefutable proof of something, ask the target a question hoping for a lie, collect the lie they wanted, and reap a felony conviction.
Some people say, "Well, there's an easy solution—just tell the truth." Casual acquaintance with President Trump suggests that's not an easy solution to him. I'm not saying that he constantly lies consciously and deliberately, but he certainly says untrue things constantly and gratuitously, in the way that characters on Deadwood swear. There's little reason to think he can learn to change for an interview, particularly one with a nemesis who infuriates him.
Anyway, even an honest, circumspect person faces grave peril in such an interview. FBI agents and prosecutors are adept at putting interviewees ill at ease. The pressure is immense. Human memory is fallible, and the interrogators are not disposed to view misremembered statements as accidents. You don't know the significance of everything they are asking you, and most people simply cannot sustain the sort of focus necessary to respond to complicated questions precisely and accurately for a sustained period of time. "Just tell the truth," applied to a complicated interview, assumes that the witness is extraordinarily disciplined and that questioners have an open mind and will act fairly and in good faith. Those assumptions are not warranted.
Just as there are abyssal downsides for a target or subject to submit to a government interview, there are very rarely upsides. If you are the subject or target of a federal investigation, you're not going to talk them out of it. They have the receipts already. Nothing you say, in and of itself, will end the investigation. You cannot "just clear a few things up." You cannot impress them with your honesty. If they decide they don't have a case, they will decide this based on other evidence—other witnesses, documents, and so forth—and not on your denials. Moreover, there's nothing you can say in an interview that your attorney can't convey to investigators informally. If some key fact will exonerate you, your attorneys can tell them without exposing you to charges.
Trump's case, of course, is somewhat different. Many legal scholars think that he cannot be indicted for false statements under Section 1001, or obstruction of justice, or perjury, unless and until he is impeached—at least not under this special counsel. But he has no good reason to hand Mueller an opportunity to build a lie-based case for impeachment, nor a lie-based indictment in the event he's impeached.
If the president refuses to submit to a voluntary interview, Special Counsel Mueller could conceivably subpoena him to testify before the grand jury. That would require Mueller to tip his hand about the president's precise status: Department of Justice regulations require prosecutors to warn targets or subjects of their Fifth Amendment rights when subpoenaing them before a grand jury, and to advise targets of their status as targets. Trump might defy such a subpoena, and Mueller might seek to enforce it in court. The Supreme Court's decision in Clinton v. Jones suggests that the president is not immune from such subpoenas, even if there may be ambiguity about the exact way they can be enforced and the precise privileges the president might assert. This would be a spectacle and a constitutional crisis. But so would a clamor for an impeachment proceeding premised on lies to the FBI or perjury under oath. Submitting voluntarily to an interview with the special counsel does not prevent the spectacle or crisis; it merely hastens it and changes its nature from a struggle over presidential privilege and immunity to a struggle over the consequences of lying.
That bring us to one final reason to cooperate often offered: politics. I am not a politician, but I don't need to be one to dispense with the notion that talking to Mueller is a political necessity. Donald Trump is not a man of mystery. He is exactly what it says on the package. He has spent his first year as president being very much himself. The people who like that have continued to like it, the people who hate it have continued to hate it, and most Republicans in the House and Senate have backed him, albeit with occasional timid throat-clearing. If he refuses to submit to an interview with Robert Mueller, under oath or not, absolutely nothing in the last year suggests that he will face debilitating political consequences. The president will crow that he has refused to cooperate with a biased and meritless investigation calculated to harass him, and he will do so with political impunity. The proverbial camel is in its cold grave; this additional straw upon its back cannot trouble it.
I submit this is not a close call. If the president were my client, I would advise him not to submit voluntarily to an interview, under oath or not, with Special Counsel Mueller. It offers him nothing but risk, even if it offers the rest of us entertainment or schadenfreude.
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