The chief threat to Donald Trump at the moment isn’t that he’ll fire Robert Mueller, but that he’ll cooperate too readily.
The president’s legal team has been roiled and his White House advisers divided by his determination to sit down for a deposition with Mueller’s team of prosecutors. Rarely has someone who is supposed to be feeling the legal net closing in been so eager to run toward the netting.
Trump lawyer John Dowd reportedly quit over the dispute, and he was right. Trump shouldn’t walk into the same room with Mueller. He shouldn’t say “hello” to him. He shouldn’t follow him on Instagram or Twitter. He should treat him as an adversary who, even if he isn’t conducting “the witch hunt” that Trump alleges, would certainly be happy to nail him for the slightest misstatement.
Mueller was supposed to be conducting a counterintelligence investigation into Russian interference in the election, which immediately also became an investigation of obstruction of justice. The Washington Post reports that Mueller now plans to issue a report on obstruction before he finishes what was his original mission. Trump’s attitude should be, “Come and get me, copper—if you have an case for obstruction, make it, but I’m not incurring any additional legal jeopardy by sitting down and talking to you.”
It’s not as though Mueller has been shut out. According to a breakdown released by Dowd in January, the special counsel has talked to 20 White House employees and received 20,000 pages of documents.
In the past, Trump has been careful in his depositions, but since his mode of communication is highly dependent on jaw-dropping hyperbole, gross simplifications and misinformed or misleading assertions, it can’t be a good idea to put him under oath in any circumstance.
Trump’s fearlessness and animal cunning are two of his signature traits, so it makes sense that he sincerely believes that he can win the conversation with Mueller’s lawyers.
It also runs counter to the widespread assertion that Trump is “acting guilty,” when he may well be acting like Donald Trump—aggrieved, combative, scornful—when he’s innocent.
How many guilty parties are so insistent on talking to authorities that they lose their lawyers over it?
But this is a foolish confidence on Trump’s part. Even more-deft talkers have realized the peril of such situations. Bill Clinton, a master of distinctions so subtle that sometimes only he understood them, resisted a subpoena in the Paula Jones case all the way to the Supreme Court, and for good reason.
Perjury would probably be the closest Mueller could get—absent some unforeseen smoking gun—to a real unambiguous crime. So far, besides Paul Manafort and 13 Russians who will never see the inside of a courtroom, his operation has been about catching people in lies to the FBI.
And with notable aggressiveness. The agents who talked to Michael Flynn didn’t think he was being deliberately misleading. Mueller’s team disagreed and pinned Flynn to the wall.
There isn’t any upside to counterbalance the downside of talking to Mueller. Trump is not going to explain away everything to his satisfaction such that the special counsel says, “Never mind. The president says his motives were pure.”
Trump probably won’t even speed up the end of Mueller’s investigation. The special counsel presumably is trying to flip Manafort and the second trial of the former Trump campaign manager doesn’t begin until September.
The politics of resisting Mueller are probably insignificant. Trump’s base is going to stick with him and it’s doubtful that the Mueller investigation is much of a voting issue (anyone opposing Trump because of his conduct in the Mueller probe almost certainly already opposes him for other, nonprocess reasons).
Not sitting down will inevitably cause a court fight over a subpoena. Success for Trump wouldn’t be guaranteed, but he’d have a chance of winning on the basis of executive privilege. To overcome such a claim, Mueller would need to show that Trump’s testimony is necessary to the investigation of a crime, when Trump—so far as we know—hasn’t bribed anyone or subpoenaed perjury but simply exercised his lawful powers, e.g., fired the FBI director.
Has he exercised those powers in a corrupt and abusive manner? If so, as David Rivkin and Lee Casey argue in the Wall Street Journal, that is a matter for the political process, specifically for Congress to consider under its impeachment power, rather than for the criminal justice system.
When Mueller’s report becomes public in some form or other, Trump will have plenty of opportunity to forcefully rebut it in the court of public opinion. Until then, he shouldn’t voluntarily subject himself to a process suited to create an impeachable offense where that wasn’t one before.
But what do I know? If Trump’s going to throw caution to the wind, go all the way. Insist that the deposition be broadcast on live TV for everyone to see for themselves and make up their minds in real time. And if it doesn’t go well—fire Mueller in front of the cameras from an impressively mahogany conference table.
Would there be any more appropriate way for all this to end?