Trump’s lawyers are laying the groundwork for a dubious new strategy to avoid an interview with Mueller

President Donald Trump Getty Images/Pool
  • President Donald Trump’s legal team plans to argue that in order to interview Trump, special counsel Robert Mueller’s team must prove that only Trump can give them the information they seek.
  • The strategy marks Trump’s lawyers’ latest attempt to avoid or block a face-to-face interview between the president and the special counsel as he probes Russia’s interference in the 2016 election.
  • Experts said the argument was “weak,” “dubious,” has no legal precedent, and is unlikely to succeed.

President Donald Trump’s lawyers are planning to argue that special counsel Robert Mueller has not met the required standard to merit a face-to-face interview with the president, CNNreported Tuesday.

The news builds on revelations earlier this month that Trump’s personal defence lawyers are using a 1994 investigation into a Clinton administration official as a roadmap to limit the scope of questioning in the event of an interview.

The strategy is one of several options Trump’s personal defence lawyers, John Dowd and Jay Sekulow, are examining as they seek to limit or avoid an interview with Mueller altogether. Others include providing written responses to questions and submitting an affidavit saying Trump did nothing wrong.

The special counsel is investigating Russia’s interference in the 2016 US election, including whether Trump’s campaign colluded with Moscow to tilt the race in his favour.

Trump’s legal defence team has repeatedly signalled that it has been fully transparent and is cooperating with Mueller’s document and interview requests.

But when it comes to a sit-down with Trump, the president’s lawyers reportedly believe that he should not be subject to the same rules that govern other witness testimony. Instead, they’re said to be gearing up to ask prosecutors to prove that Mueller can only get the information he needs by interviewing Trump in person.

Experts told Business Insider the argument was “weak,” “dubious,” and unlikely to succeed.

Trump’s lawyers did not immediately respond to requests for comment.

‘The only person who can testify authoritatively to Donald Trump’s motives is Donald Trump’

“This strikes me as a weak argument,” said Jens David Ohlin, a vice dean at Cornell Law School and an expert in criminal law. “If the Trump team tries to contest a grand jury subpoena, Mueller can easily demonstrate that Trump has evidence that cannot be obtained elsewhere.”

In addition to investigating whether members of the Trump campaign colluded with Moscow to tilt the 2016 election in his favour, Mueller is also examining whether Trump sought to obstruct justice when he fired FBI director James Comey last May.

The White House initially said Trump fired Comey because of the way he handled the bureau’s investigation into former Secretary of State Hillary Clinton’s use of a private email server to conduct government business.

But Trump later said on national television that “this Russia thing” was a factor in his decision. He also reportedly told two top Russian government officials during an Oval Office meeting the day after Comey’s ouster that removing the FBI director had taken “great pressure” off of him.

In order to prove obstruction of justice, Mueller would need to establish that Trump had corrupt intent when he fired Comey, who was overseeing the bureau’s Russia investigation when he was fired.

“The only person who can testify authoritatively to Donald Trump’s motives is Donald Trump,” Ohlin said.

Former federal prosecutor Patrick Cotter echoed that point, saying Trump was “clearly the only person on earth who knows what the prosecutor wants to know.”

‘Trump’s lawyers have made up a standard that does not exist’

Donald trump james comey
Trump shakes hands with James Comey, then-director of the FBI, on January 22, 2017. Andrew Harrer/Pool,Getty Images

Questions Mueller may focus on that speak to Trump’s mindset include:

“My quick take is that Trump’s lawyers have made up a standard that does not exist in the law or in the practice of federal criminal investigations, and then declared that Mueller hasn’t met it,” Cotter said. “I know of no legal rule that says the prosecutor has to prove that only the President can provide the information he seeks before subpoenaing him or asking for an interview.”

Though Trump has said in the past that he would “love to” meet with Mueller, he added the caveat that it would be up to his lawyers. If Trump refuses an interview request, Mueller’s team could respond with a grand jury subpoena, which legal experts said Trump’s team couldn’t avoid.

“If Trump lawyers are creating a new standard only for presidents, it is one not based on any legal statute or precedent,” Cotter said, adding that former presidents Richard Nixon and Bill Clinton had to comply with subpoenas in past investigations.

“Only Trump can testify as to what he knew, when he knew it, and what his intentions were when he did the things he did,” Cotter said. “So, even using the Trump lawyers’ dubious standard, Trump should agree to the interview.”