Special counsel Robert Mueller is still in talks with President Donald Trump’s lawyers about an interview—but the Russia probe can be completed without it.
Prosecutors have already questioned at least two dozen current and former Trump White House aides plus several more who worked on the 2016 presidential campaign. Mueller also has access to myriad pieces of evidence surrounding the president thanks to wiretaps, congressional testimony and documents submitted both voluntarily and through subpoena.
Mueller still has reasons for wanting a Trump interview, namely to give the president an opportunity to explain himself in his own words about his reasons when firing his former FBI director James Comey. That information could go a long way for the special counsel as he weighs making such landmark decisions as whether to indict a sitting president or when writing a final report that could be used to launch impeachment proceedings in Congress.
But lawyers close to Trump say Mueller shouldn’t count on it happening.
“That’s certainly a very high likelihood” there won’t be an interview between Trump and Mueller, said Alan Dershowitz, the retired Harvard law professor whose legal arguments have been championed by Trump and recently met with the president and his aides at the White House. “No lawyer ever wants his client to sit down with a prosecutor. No good has ever come of that.”
The president told reporters last June that he was “100 percent” willing to testify under oath. In January, he said he was “looking forward to it, actually.” And as recently as a month ago, Trump again said he was ready to speak with Mueller.
But the president’s stance shifted in the wake of the FBI’s early April raid on the New York home, office and hotel room of the president’s longtime personal attorney Michael Cohen.
Trump’s new lead personal lawyer, Rudy Giuliani, met Tuesday in Washington with Mueller to get the latest read on the special counsel’s interest in a presidential interview and also to gauge the special counsel’s long-term end game. A source familiar with the president’s legal strategy said Giuliani going into the meeting with Mueller wasn’t clear whether they were still pushing for an interview.
In an interview with the New York Times, Giuliani outlined the perils of Trump sitting down to talk with Mueller.
“At this stage of an investigation, it’d be highly unusual to let an ordinary client testify,” Giuliani told the Times. And, he added: “This isn’t an ordinary client. This is the president of the United States.”
Giuliani did not respond to a call for comment. Jay Sekulow, another member of the president’s personal legal team, said Giuliani was “hitting the ground running” in his representation of Trump but declined to discuss “whether any of us did or didn’t meet” with Mueller.
From Mueller’s perspective, the benefits of a Trump interview must be weighed against the prospect that questioning the president may not benefit his case much in the long haul.
“I don’t think they’d get much out of a Trump interview,” said Julian Epstein, a former chief counsel for House Judiciary Committee Democrats during the impeachment of President Bill Clinton. “Trump has a faulty memory. He’s evasive. You’re not going to get a lot of information that’s useful.”
Yet a defense attorney involved in the Russia probe said Trump’s testimony was needed to help explain his intentions surrounding the Comey firing and the subsequent series of contradictory comments around it from the president and his own White House.
Officially, the White House cited recommendations from Deputy Attorney General Rod Rosenstein, who wrote a memo suggesting the FBI director’s removal stemmed from how he’d handled the public release of information about the investigation into Hillary Clinton’s use of a private email server during her time as secretary of state.
But Trump during a 10-day period after Comey’s firing also told NBC News’s Lester Holt that he had the Russia investigation in mind when he made the decision, and he also boasted to Russian officials during an Oval Office visit that he “faced great pressure because of Russia” before firing the FBI director, whom he also reportedly called “crazy, a real nut job.”
“From Mueller’s point of view, it’s essential for him to be able to say he pursued every lead,” the defense lawyer said.
Mueller’s office declined to comment.
Lawyers say Mueller probably has the legal power to subpoena Trump, forcing him to appear before a grand jury. That’s how independent counsel Ken Starr and Clinton’s lawyers dealt with a similar clash in 1998, ultimately leading to a negotiated settlement and the president’s interview in the White House Map Room where Clinton famously quibbled with prosecutors over the meaning of the word “is” and the definition of “sexual relations.” Clinton’s testimony became central to arguments made by the GOP-led House of Representatives when it impeached Clinton on charges of perjury and obstruction of justice.
“The real question,” said Benjamin Wittes, a Brookings Institution senior fellow and editor in chief of the blog Lawfare, “is how much does Mueller want” an interview with Trump. “If he wants it, he’s going to get it.”
Yet Mueller would need to be prepared for an all-out legal fight against Trump that could last months while it winds its way to the Supreme Court.
“That’s the game the Trump team is thinking about playing: Can we get this tied up in courts?” Epstein said, who added that Mueller must calculate for “the danger of getting caught in unending litigation of the subpoena and enforcement of the subpoena that can just be a rabbit hole of delays.”
Another factor for Mueller to consider: the prospect that Trump and his lawyers could ultimately assert the president’s Fifth Amendment right against possible self-incrimination. Then, he’d be required to follow a Justice Department policy that says in all but the most extraordinary circumstances he must honor such a move.
“Mueller, I expect, has too much integrity and too much respect for institutions – ironic, no? – to force a sitting president to assert a Fifth Amendment privilege,” a second defense lawyer representing a senior Trump aide told POLITICO in an email.
“So, yeah, no means no,” the attorney added. “But I don’t think it would meaningfully affect Mueller’s investigation.”