Special counsel Robert Mueller spent much of 2017 making quiet progress in his investigation into Russian meddling in the 2016 election, but that has changed in the new year. Mueller’s team has interviewed Attorney General Jeff Sessions, will soon meet with former White House strategist Steve Bannon, and is making preparations for their biggest interview of all: President Donald Trump himself.
On Wednesday, Trump told reporters he would gladly meet with Mueller. In fact, he was looking forward to the interview he thinks will finally expunge the allegations of wrongdoing that have swirled around his presidency almost since he took office.
“Here’s the story, just so you understand,” he said. “There’s been no collusion whatsoever. There’s no obstruction whatsoever, and I’m looking forward to it.”
Trump may be right to be optimistic. While the special counsel doubtless has reams of information at its disposal that the public does not, a full year of frantic digging in the press has yet to turn up any evidence that the Trump campaign actually aided Russian attempts to destabilize the 2016 election. And despite Mueller’s investigative prowess and cooperating witnesses close to the White House, and despite the White House’s repeated evasions and falsehoods regarding the campaign’s contact with Russian officials, some legal experts doubt that Mueller will have sufficient evidence to charge Trump with obstructing his investigation.
“I don’t see any evidence that Trump is directing people to lie to investigators, so to me, it’s not enough,” Sol Wisenberg, who served as deputy independent counsel in the Whitewater investigation during the Clinton presidency, told THE WEEKLY STANDARD. “I think almost everything that Trump did starting with the firing of Comey, criticizing Sessions for recusing himself, all of that stuff, allowing the attacks on Mueller to happen, it’s all terrible. But I don’t think it’s obstruction.”
Robert Ray, another Whitewater veteran who oversaw the investigation’s final reports, agreed: “You would be hard-pressed to conclude in good faith that you could convince a jury… that the president’s intention in firing the FBI director was to obstruct a law enforcement investigation. I don’t know a prosecutor in America who would actually, if they were being candid and politics aside, who could conclude based on that that’s what his intention was.”
Nevertheless, the president’s attorneys aren’t as nonchalant about the meeting as Trump himself seems to be. After Trump’s comments last night, his attorney Ty Cobb hastened to add that Trump wasn’t giving his unilateral assent to meet Mueller under any conditions.
The reason for this is simple: Just because Trump hasn’t committed a crime yet doesn’t mean a meeting with Mueller doesn’t present serious dangers.
Trump wouldn’t be under oath in a private interview with the special counsel, like he would if he were compelled to testify before a grand jury. But it is nevertheless a felony to lie to the FBI. And that means the stories that have allowed Trump to hand-wave the investigation for months as a partisan witch hunt aren’t going to fly. For the first time, Trump will have to give satisfactory answers on such issues as his changing explanation for why FBI director James Comey was fired last spring, or when and whether he knew that former adviser Michael Flynn had lied to law enforcement about his Russian contacts.
“I think the White House lawyers do not know how much information and in what areas Mueller has,” Wisenberg said. “So I would be very worried about letting Trump sit down for an interview, and I think they ought to give serious consideration to having Trump decline to do so.”
Certainly backing out of the interview wouldn’t look good for the president; the White House has maintained all along they are cooperating with the special counsel fully and have nothing to hide. At the same time, however, the president has made clear he believes the Russia investigation to be a partisan witch hunt intended to harm his presidency. So if the special counsel can’t bring a case against Trump on the merits, why would he consent to submit for an interview where, he believes, the “witch-hunters” might try to ensnare him?
“I would give serious consideration to invoking the Fifth Amendment and going on national TV and explaining it to the people, saying that the Supreme Court has said since the 1950s that the privilege against self-incrimination is meant to protect the innocent as well as the guilty,” Wisenberg said. The case would be straightforward: “I’ve criticized this investigation as a witch hunt from the beginning. I’ve offered to answer written questions. But I’m not going to be subject to some kind of ‘gotcha’ effort, and I’m going to invoke my Fifth amendment right, which is my privilege as an American citizen.”
But declining the interview like that would be the conservative, defensive play—and no one’s ever accused Trump of running too defensive a playbook. Convinced he’s being unfairly targeted, eager to end the Russia inquiry once and for all, Trump appears ready to risk it.
“I am sure that the president, who has a fair amount of experience having testified under oath previously, and has the benefit of sophisticated counsel, understands the difference about what it is you can say when you’re not under oath and what it is you can say when you are under oath,” Ray said. “I think the president wants it recorded. He said, ‘a deposition under oath.’ I think what he intends to convey there is he wants there to be a record of the questions that were asked and the questions that he gave.”
