- Following weeks of negotiations with the special counsel Robert Mueller, President Donald Trump’s lawyers are leaning toward steering clear of having the president sit down for an interview altogether.
- Trump’s lawyers reportedly favour the option because they’re concerned he could be charged with lying to investigators, which is a federal crime.
- Legal experts say it’s unlikely they will be successful because “Mueller holds the stronger hand” based on legal precedent.
After weeks of back-and-forth with the special counsel Robert Mueller, President Donald Trump’s legal team is angling to avoid an interview with Mueller altogether, according to The New York Times.
Trump’s personal-defence lawyers, John Dowd and Jay Sekulow, have been looking to limit the scope of a Mueller interview since late last year. Options they were reviewing included providing written responses to questions and submitting an affidavit saying Trump did nothing wrong.
The main reason Trump’s lawyers are moving towards completely avoiding a wide-ranging interview with Mueller is that they are concerned the president, who has a history of embellishment and exaggeration, could be charged with lying to investigators, per the report.
Reached for comment, Dowd said, “The active discussions between the OSC and the President’s personal lawyers regarding how and under what terms information will be exchanged are understandably private.”
This latest revelation builds on reports last week which said that as they seek to sidestep a Mueller interview, Trump’s lawyers are gearing up to argue that Mueller has not met the required standard to merit a face-to-face sit down with the president.
Despite his lawyers’ reported trepidation, Trump has privately and publicly said he is “eager” to interview with the special counsel. He later added that the agreement would be “subject to my lawyers.”
How successful Trump’s defence team would be at avoiding an interview, however, is up for debate.
‘Mueller holds the stronger hand’
“This strategy will trigger a prolonged court battle that will take months to resolve,” said Jens David Ohlin, a vice dean at Cornell Law School and an expert in criminal law. “The result will be a delay to the Mueller investigation and consequently no end in sight for Trump’s legal woes.”
This also marks a turning point in the White House’s response to the Russia probe. Since last year, Trump’s legal team, whose public statements have largely been led by White House counsel Ty Cobb, has projected an image of transparency and a willingness to be as forthcoming as possible with the special counsel’s document and interview requests.
But “they appear to have given up on that approach,” Ohlin said. “The new strategy is delay, delay, delay.”
Though Dowd and Sekulow are said to be working to steer clear of a Mueller interview, they are at odds with Cobb, who still believes the White House should be as cooperative as possible.
If Trump refuses an interview request, Mueller could respond with a grand-jury subpoena, which legal experts said he would not be able to avoid.
“My money is on Mueller” because he “holds the stronger hand,” said Andrew Wright, who used to serve as a White House lawyer under former President Barack Obama.
The special counsel’s authority to subpoena Trump was enforced by US v. Nixon in 1974, in which the Supreme Court ruled in favour of special prosecutor Archibald Cox over President Richard Nixon’s claims of executive privilege and objections of intra-executive justifiability.
Moreover, the Supreme Court ruled in 1997, in Clinton v. Jones, that a sitting president is not immune from civil-law litigation. The decision resulted in then President Bill Clinton having to testify before a grand jury after former Arkansas state employee Paula Jones accused him of sexual harassment.
“A criminal case is far more important than a civil suit, so the public-policy rationale for requiring the president to testify is stronger, not weaker, in [Trump’s] case,” Ohlin said.
Mueller closes in on the White House
Trump is a central figure in several threads of the Russia investigation, which means his testimony could prove crucial to Mueller. In addition to investigating whether members of the Trump campaign colluded with Moscow to tilt the 2016 race in his favour, Mueller is also looking into whether Trump sought to obstruct justice when he fired FBI director James Comey last May.
Though the White House said Comey was fired because of his handling of the FBI investigation into Hillary Clinton’s use of a private email server, Trump later said he was fired because of “this Russia thing.” He also reportedly told two top Russian government officials that dismissing Comey had taken “great pressure” off of him.
Comey’s firing came three months after Trump asked him, during a private meeting last February, to let go of the FBI’s investigation into former national security adviser Michael Flynn. Flynn pleaded guilty in December to one count of lying to federal investigators during an interview in January 2017.
Trump said in a tweet the day after the Flynn charge was announced that he had to fire him because he “lied to the FBI.” Experts said at the time that if Trump knew Flynn had committed a crime when he asked Comey to drop the FBI investigation, it would significantly bolster the obstruction case against him.
Trump’s lawyers are reportedly angling to argue that Trump did nothing wrong when he fired Comey, because he has the constitutional authority to do so as president. But the president may not fire the FBI director if his intent is to obstruct justice – otherwise known as having “corrupt intent.”To prove corrupt intent, prosecutors must establish that a defendant has engaged in a pattern of behaviour that points to criminal conduct.
Even if Trump’s lawyers are able to argue that Trump did not obstruct justice when he fired Comey, Wright said, there are a host of other events Trump was involved in that are at issue in the Russia probe.
The special counsel is examining, for instance, Trump’s reported decision to craft a misleading statement that his son, Donald Trump Jr., put out in response to reports last year that he met with a Russian lawyer offering kompromat on then Democratic nominee Hillary Clinton in June 2016, at the height of the campaign.
Trump Jr. initially said the meeting did not involve campaign business, but it later emerged that he only agreed to the meeting after he was offered dirt on Clinton as “part of Russia and its government’s support for Mr. Trump.”
More than that, Wright added, Trump is a key witness as far as other campaign events go, including his remark on live television that he “hoped” Russia would be “able to find the 30,000 [Clinton] emails that are missing,” and his knowledge of pro-Russia changes to the GOP platform during the 2016 election.
“The President can’t successfully distinguish his reasons for avoiding an interview from prior Presidents,” Wright said, adding that former presidents Bush, Clinton, and others testified and interviewed with prosecutors.
“President Trump’s habit of lying is not something a court will accept as a reason to shield him from giving evidence.”
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