President Donald Trump’s ongoing interactions with special counsel Robert Mueller’s investigation are proceeding on two very different tracks. Even as Trump projects feigned confidence in public, feeding his gullible supporters tweets about how the probe is a “witch hunt” and nothing but a Democratic “hoax,” the behind-the-scenes talks between Trump’s lawyers and Mueller’s investigators betray the opposite of confidence, instead revealing obvious fear of what Mueller has learned so far, and what more he may uncover.
Case in point: Even as Trump brashly called on his attorney general to fire Mueller, the talks unfolding between Trump’s lawyers and Mueller’s team over whether Trump will sit for an interview did not suggest that members of Trump’s team feel as though they’re in a strong position.
The Post’s Carol D. Leonnig reports that Mueller has privately agreed to limit the questions that Trump would be asked in an interview, in order to get him to agree to sit for it:
“Mueller’s team suggested that investigators would reduce the number of questions about potential obstruction of justice they would ask in person and instead seek some answers in written form, according to one person.”
Remember, Trump lawyer Rudy Giuliani had previously insisted that if Trump were going to sit for an interview, questions about what Trump did as president to obstruct the probe - such as firing James Comey as FBI director - would have to be off the table entirely. Now, even with this new offer from Mueller, Trump’s lawyers are still saying that an interview might not happen. As Leonnig reports:
“Giuliani has repeatedly warned that such an interview would expose Trump to legal danger, saying that if Trump made any misstep or if Mueller later determined that other witnesses were more credible than Trump about what he had said and done, the president could face accusations of perjury.”
This is a remarkable position. What Giuliani really fears is that Trump will lie about conduct that Mueller is examining for potential obstruction of justice. Giuliani had previously expanded on this fear, insisting that Trump genuinely doesn’t believe he actually pressed Comey to drop the investigation into former national security adviser Michael Flynn - which could lead Trump to deny to Mueller that it ever happened - and that Mueller might conclude otherwise, subjecting Trump to charges of lying to investigators.
But whether Trump believes he said this or not, Giuliani plainly fears that Mueller will believe the testimony of other witnesses to Trump’s conduct over that of Trump himself. It bears pointing out that there is a lot of this conduct, far beyond what Trump said about Flynn. There was Trump’s demand for Comey’s loyalty. There was Trump’s decision to fire Comey when that loyalty wasn’t forthcoming. There was Trump’s repeated rage sessions at Attorney General Jeff Sessions for failing to protect him from the probe, which include a direct order from Trump to his White House counsel to stop Sessions from recusing himself, which failed, causing Trump to erupt in fury once again at Sessions for failing to shield him. There was Trump’s similar order (which also failed) for the firing of Mueller.
There are witnesses to Trump’s conduct in many of these cases. Trump reportedly had conversations with top White House officials that indicated he knew Flynn was under criminal investigation when he pressed Comey to drop the probe into him. There are reportedly written memos attesting to this. Comey kept contemporaneous, detailed notes of his conversations with Trump, and Comey confided in other officials about them at the time. And so on. Thus, when Giuliani says he fears Mueller will believe other witnesses, should they contradict Trump’s testimony about his conduct, there’s good reason for it. This is not a position of strength.
There’s an additional wrinkle to this: Trump’s lawyers don’t just fear that he will lie to Mueller about his efforts to scuttle the investigation; it’s very likely that they also fear that Trump might tell the truth about those efforts, which could also be incriminating. Now, establishing obstruction of justice is a delicate business. Prosecutors seek to establish “corrupt intent,” such as a desire to protect oneself and one’s cronies from investigation. They will try to establish a pattern of behavior that reveals this intent.
But Trump’s repeated public statements have arguably already revealed this intent (and, crucially, that Trump isn’t at all shy about revealing that intent) such as when he admitted on national television that he fired Comey over anger at the probe. Indeed, when Trump openly called on Sessions to end the Mueller investigation, his lawyers were forced to engage in absurd parsing to argue that this wasn’t an order, but merely was his “opinion.” Even if that were true, it would still go to establishing his intent.
Trump’s real problem is almost certainly that he can’t lie to Mueller about his conduct or tell him the truth about it. This does not mean Mueller will definitely find that Trump’s obstruction was criminal (which might not happen) or that Trump will be indicted for it (which certainly won’t). But either way, Mueller will still submit a report on Trump’s obstruction (and collusion as well), and anything Trump says will figure into that report. Meanwhile, looming in the background is the increasing possibility of a Democratic takeover of the House, and with it, the possibility of impeachment. Mueller’s report will depict Trump’s conduct in great new detail that we can only guess at.
Given what we know now, it’s hard to see how Trump’s testimony to Mueller can help him. It likely can only make the overall picture of his conduct look more damning - whether he lies to Mueller about that conduct, or tells him the truth about it.