by Jordan Fabian and Morgan Chalfant · January 12, 2018
President Trump could face the greatest political and legal peril of his life if he agrees to an interview with Robert Mueller, the special counsel investigating Russia’s interference in the 2016 election.
Mueller would likely confront Trump over whether he obstructed justice by firing former FBI director James Comey. The special counsel could also force Trump to answer tough questions about his knowledge of some of the most controversial events related to the Russia probe.
In addition, the president would almost certainly be required to speak under oath with the FBI or members of Mueller’s team, meaning he could open himself up to a perjury charge by making false statements.
Depositions are familiar territory for Trump, who claims he has testified more than 100 times in thousands of lawsuits over the course of his business career. But Trump may try to avoid a turn in the interview room with Mueller’s team because of the tremendous risks he now faces as commander in chief, some legal experts say.
“Any defense lawyer’s position is, ‘why would I want to subject my client to an interview with the FBI?’ Ask Martha Stewart what a great idea that was,” said Robert Ray, the former independent counsel during the Clinton-era Whitewater probe.
Stewart, the popular lifestyle guru, spent time in federal prison for lying to investigators in a 2004 stock trading case.
While the situation is different for Trump, who almost certainly cannot be prosecuted in the courts as president, he still faces the danger of impeachment.
The so-called “perjury trap” is what ensnared former President Bill Clinton, who testified before a federal grand jury convened by special prosecutor Kenneth Starr in the Whitewater investigation.
Clinton’s 1998 testimony, including his responses to questions about his relationship with White House intern Monica Lewinsky, helped trigger his impeachment by Congress on charges of obstruction of justice and perjury.
Ray said Clinton had “no choice” but to testify because if he didn’t, he faced the prospect of impeachment by the Republican-controlled House. That’s not the case for Trump because his party controls both ends of Pennsylvania Ave.
“I think the president, in the political process, is pushing back, which he has the right to do,” Ray said, adding “there is no upside” for Trump if he agrees to an interview.
That could help explain why Trump on Wednesday refused to commit to speaking under oath with Mueller.
“I’ll speak to attorneys,” the president said during a news conference. “We’ll see what happens.”
The answer marked a shift by Trump, who previously indicated he was eager to speak with Mueller. Last June, the president said he was “100 percent” willing to make a sworn statement to the special counsel.
“It’s sort of like, when you’ve done nothing wrong, let’s be open and get it over with,” Trump told reporters at Camp David last Saturday when asked about the prospect of an interview.
White House press secretary Sarah Huckabee Sanders said Thursday that Trump’s position on an interview with Muller has not changed.
“We’re going to be fully cooperative with the special counsel as we have been,” Sanders said. “However, the president and his personal attorneys are going to discuss this matter with the Office of the Special Counsel, not reporters, and that’s the process we will follow.”
Trump’s personal lawyers did not respond to a request for comment.
A formal interview request from Mueller would trigger negotiations with Trump’s lawyers about the conditions.
The president’s team is likely to push for certain parameters, such as providing answers in writing, limiting the scope of questions or asking that it not be conducted under oath — measures that would guard the president from the risk of perjury.
In the past, Trump has repeated unsubstantiated claims or exaggerations during legal depositions. But on other occasions, he has backed off or conceded. During a December 2007 deposition, The Washington Post found Trump admitted to making 30 false statements alone.
“This is a president who has a rather casual relationship with the truth,” said Stephen Vladeck, a University of Texas law professor. “And if prior practice is any indication, has a casual relationship with norms of discourse.”
Preparing Trump for an interview would be a massive undertaking for members of his legal team, who would have to ensure he has truthful answers ready for a wide-range of questions about his campaign and his conduct in office. Only four presidents have ever been deposed under oath.
“If you’re the lawyer, you have to be attentive to your clients’ personality and how he reacts to tough questions,” said John Wood, a former U.S. attorney. “He will have to keep his emotions and his ego in check and always answer truthfully.”
Mueller’s team, meanwhile, is sure to resist efforts to limit the scope or circumstances of the interview. Legal experts believe there is a good chance that, ultimately, the two parties might not agree on terms to make the interview happen.
While it might be legally wise, refusing the interview could have serious political implications for Trump, who would be seen as not cooperating with the special counsel investigation.
It could also open up the possibility of Mueller issuing a subpoena to compel Trump’s testimony, which would almost certainly trigger a messy legal battle.
“Can the president really be seen as not cooperating?” said Randall Eliason, a white-collar criminal law professor at George Washington University. “That’s a tough political issue as well as a legal one.”
If a deal is reached for an interview, Mueller would surely grill Trump on the firing of Comey as well as the controversial June 2016 meeting with a Russian lawyer at Trump Tower which his son, Donald Trump Jr., took after being offered damaging information on Hillary Clinton.
Trump himself reportedly dictated a statement from Trump Jr. last summer describing the 2016 meeting with Russian lawyer Natalia Veselnitskaya as primarily about adoptions of Russian children.
Mueller could also press Trump about the firing of national security adviser Michael Flynn, who pleaded guilty to lying to the FBI about his talks with Russia’s U.S. ambassador.
The line of questioning would likely be guided by two themes: the issue of obstruction of justice, and the underlying matter of possible collusion between the Trump campaign and Moscow.
The White House initially pinned Comey’s firing on a recommendation from the Justice Department over his handling of the Clinton email investigation. Later, Trump in an interview stated the Russia investigation factored into his firing.
“When I decided to just do it, I said to myself, I said, ‘You know, this Russia thing with Trump and Russia is a made-up story,’” the president told NBC News’ Lester Holt in May.
Comey told the Senate Intelligence Committee in June that Trump had asked him to let go of the investigation into Flynn, something Trump has vehemently denied.
When Flynn’s guilty plea became public last month, Trump raised eyebrows by tweeting that he fired Flynn in February for lying to the FBI. That sequence of events would mean Trump knew about Flynn’s lie when he allegedly asked Comey to stop the probe.
John Dowd, one of Trump’s attorneys, has said he was the one who wrote the tweet about Flynn, not the president, but it still opens up another area of questioning for Mueller.
“I’d think he’d want to walk Trump through every piece of the decision-making on the firing to see whether the responses line up with what he’s already discovered and is, perhaps, able to prove,” said Ron Hosko, a former FBI agent who worked under Mueller when he was FBI director.
Still, it remains unclear what Mueller actually has learned his investigation. The special counsel has kept a tight lid on his findings, which few details leaking out through the media.
He has already secured guilty pleas from Flynn and George Papadopoulos, a low-level campaign foreign policy adviser, for lying to the FBI about their Russia contacts.
“We don’t know what Flynn has provided as part of his plea deal,” Hosko said. “Is it great stuff that Mueller’s team has already been able to validate, does it implicate Trump himself, or is it something that Mueller might need or want Trump to talk about? All unknowns to us.”