The President Can End the Standoff With Mueller
The Mueller investigation of President Trump has reached an impasse. The special counsel wants to interview the president. The president’s lawyers -- well aware of cases in which prominent people have been convicted of perjury about their sworn statements instead of the crime for which they were being investigated — do not want him to testify. They suspect a perjury trap.
This doesn’t mean they’re afraid the president will not be truthful when interviewed, but only that his recollection of an event or a conversation will differ from that of others whom Mueller has interviewed, or even differ from documentation in Mueller’s possession.
The special counsel has threatened that he will subpoena Trump, and one of the president’s lawyers has said he would defy a subpoena. This would set off a legal and constitutional controversy that could go on for a considerable period, eventually reach the Supreme Court, and still not resolve any of the questions about Russia collusion or obstruction of justice. It’s a dream scenario for the resistance.
This is absurd. We have a regular order in the criminal justice system to be followed by the parties, but it has been completely ignored in all the threats going back and forth in the media.
After a year of work, the special counsel and his staff have assembled a massive amount of information, but no one outside the Mueller staff knows whether he has any evidence that actually incriminates President Trump.
In a normal criminal case, the prosecutor outlines the evidence to the defendant’s lawyer, and the lawyer and client decide whether to plea-bargain or go to trial. Of course, this case is different because of its political elements. If Mueller reveals his evidence to the president’s lawyers, and it is deemed weak, it will be leaked to the media, eliminating any leverage that Mueller might have to get the president to sit down with him.
Even if Mueller’s evidence is strong, the president has political options, such as closing down Mueller’s investigation, which could make the premature disclosure of evidence to the president’s lawyers inadvisable for the special counsel.
So the fact is that no one will know what Mueller actually has, and the standoff between him and Trump could go on indefinitely.
But the president has an option that no one has suggested. He knows better than anyone whether he is vulnerable to prosecution, and more than anyone else he wants to bring this matter to a close and get on with his presidency. Trump could tell Mueller that he will not appear before a grand jury. He could argue that, as the apparent target of the special counsel, he cannot be compelled to testify.
Whether defendants have this option is debatable among lawyers, but as a political matter most Americans would think it’s unfair to call the president to testify when the prosecutor in this case has had a year to develop his case. If he does not have a case without the president’s testimony, then he should give up.
Accordingly, Trump could tell Mueller — perhaps, fittingly, in a tweet — “I will not sit down with you and answer your questions. Nor will I respond to a subpoena to appear before a grand jury. Instead, if you actually have evidence of my wrongdoing, which I don’t believe, I urge you to bring it to the grand jury and indict me. I’ll see you in court.”
It’s true that a prosecutor, as the saying goes, can “get a grand jury to indict a ham sandwich,” but this case is different. If Mueller has substantial evidence against the president he will proceed with an indictment in any event, and there is nothing the president might tell him in an interview that will change that. But if, as many suspect, Mueller has nothing that has not already been made public, indicting a sitting president on that basis would be a huge and career-ending embarrassment for him and his team.
From the president’s perspective, a “fish-or-cut bait” challenge to Mueller would have one major benefit. It would bring pressure on Mueller, after more than a year of investigation, to make a choice: either to seek an indictment or issue a report that clears the president of criminally culpable activity.