A leaked list of potential questions Special Counsel Robert Mueller wants to ask President Trump in a potential interview highlights the risks faced by both Trump and his inner circle.
“The odds are so huge that the president will make a misstatement or an implausible statement that looks like a lie, or that he will answer evasively in a manner that looks like an effort to obstruct the investigation, or that he will give testimony that, together with other evidence, is incriminating,” said Bruce Green, a former associate special counsel in the Iran-Contra affair and a law professor at Fordham. “Even a careful, deliberate witness would be at risk here, and there is no reason to think that the president will be a careful, deliberate witness.”
On Monday night, The New York Times reported a wide-ranging list of questions Mueller wants to pose to the president, ranging from what he knew about his aides’ contacts with Russia to Trump’s reasoning behind firing former FBI Director James Comey in May of last year. Mueller is investigating whether the 2016 Trump campaign aided a Russian disinformation effort aimed at helping Trump win the White House, and whether the president sought to interfere with the federal investigation into that effort.
Former prosecutors and investigators say that the Mueller questions likely only skim the surface of what Mueller knows or wants to ask—and that given the length of the inquiry, the special counsel has a clear picture of what he thinks happened from other witnesses, and wants to see if those accounts mesh with what the president says. Therein lies the risk for both the president and his allies—if the president’s account contradicts those of other witnesses, he could strengthen an obstruction-of-justice case against him. And even if Mueller believes the president’s version of events, if other witnesses have said something different, then they could be subject to prosecution for misleading investigators.
“When they finally get around to interviewing Trump if they do, they’ve already got all the evidence that they need, they’ve already gotten the pieces of the puzzle they need,” said Dave Gomez, a former FBI agent and a fellow at George Washington University’s Center for Cyber and Homeland Security. “They try to get the last pieces of the puzzle from the president, and then put the picture together. If the pieces from the president don’t fit the picture, that’s a problem."
The fact that Mueller sent Trump’s legal team the questions in the first place indicates a level of deference to the president not typically afforded the subjects of federal investigations. Prosecutors might give a defense lawyer some sense of the scope of an interview by outlining topics or events, but they rarely offer the actual questions in advance. Nor do Mueller’s queries indicate whether he might ask to follow-up on the president’s answers.
“Those are very dangerous questions for the president, because he doesn’t know everything the Mueller team knows, and the president never seems to do good vetting of his own people or know what they were up to,” said Clint Watts, a former FBI agent and a fellow at the Foreign Policy Research Institute. “He could give a different story, and what some of the Republicans have not really thought through, is what if the president gives a different story, and he’s adamant about it, and everyone moves to support the president, and someone who gives a different account is hung out in the wind?”
Responding to the leak of the questions in the Times Tuesday morning, Trump tweeted, “So disgraceful that the questions concerning the Russian Witch Hunt were “leaked” to the media. No questions on Collusion. Oh, I see … you have a made up, phony crime, Collusion, that never existed, and an investigation begun with illegally leaked classified information. Nice!”
The president later added, “It would seem very hard to obstruct justice for a crime that never happened! Witch Hunt!”
The Times reported that the questions were “read by the special counsel investigators to the president’s lawyers, who compiled them into a list,” and that they were then passed on “by a person outside Mr. Trump’s legal team.” The questions did, in fact, broach the subject of coordination between Russia and the Trump campaign. And as a legal matter, no underlying crime need be proven for a charge of obstruction of justice.
“The president is legally incorrect—just wrong,” said John Q. Barrett, a former associate special counsel in the Iran-Contra affair and a law professor at St. John’s University. “If his theory were the law, anyone facing criminal investigation would have an incentive to try to obstruct, so as to make it harder to prove underlying crime and thereby making the endeavor to obstruct a noncriminal ‘freebie.’”
Mueller is unlikely to indict Trump, given Justice Department regulations that state a sitting president can’t be prosecuted. But depending on what he uncovers, he might provide a report to Deputy Attorney General Rod Rosenstein, who is overseeing the investigation, that concludes Trump obstructed justice. None of the former prosecutors I spoke to said that, were they on Trump’s legal team, they would recommend that the president submit to an interview with Mueller.
“Perhaps from a political perspective, there’s a benefit for the president if he testifies rather than taking the Fifth or being perceived to be doing so,” Green said. “In the court of public opinion, silence is incriminating. But from a criminal prosecution perspective, testifying is all risk and no reward.”
Asked whether he would recommend sitting down with Mueller if Trump were his client, Green said, “not in a million years.”