Mueller shows the trouble Trump is in
The special counsel’s questions leave little doubt that the American president is in serious jeopardy, particularly regarding obstruction of justice
On Monday, the Times gave us the first glimpse of 49 questions that Special Counsel Robert Mueller could ask United States President Donald Trump, as told to Trump’s legal team during negotiations for an interview. The questions reveal the topics Mueller believes could lead to potential liability for the president and help explain why Trump’s team has urged him not to agree to an interview.
On Wednesday night, we learned that the specific questions were actually created by a Trump lawyer, Jay Sekulow, his interpretation of 16 specific subjects presented by Mueller’s team. Sekulow broke down the subjects and subtopics into the separate questions. This explains why Trump’s team had these questions — it would be highly unusual for a prosecutor to give a witness questions in advance, but it is fairly common for a prosecutor to preview potential topics for a defence attorney before an interview. For that reason, I think it’s fair to assume that Sekulow’s questions track what Mueller’s team wants to cover in an interview.
Trump’s team plans to use the questions to attack the special counsel as “overreaching” and going “beyond his mandate”, but the questions themselves suggest that Mueller has carefully stayed within his bounds. They contain nothing about obscure business deals or real estate transactions; the questions focus on coordination with Russia, obstruction of justice and topics that have been covered at length in the news media. None of the topics should have come as a surprise to Trump’s team, aside from an explosive question about efforts by the former Trump campaign chairman Paul Manafort to seek aid from the Kremlin.
What should concern Trump’s team is how the questions zero in on Trump’s criminal liability. They leave little doubt that Trump is in serious jeopardy, particularly regarding obstruction of justice. I concluded months ago that Mueller would likely determine that the president obstructed justice, but the questions show that Mueller has already thought about how he would prove his case. The queries ask about Trump’s state of mind when he fired James Comey, when he erupted in anger at former attorney general Jeff Sessions for recusing himself and when he considered firing the special counsel. The questions are intended to prove the case against Trump through his own words.
Testifying before a grand jury
But it would be a mistake to count the number of questions focused on obstruction and conclude that Mueller’s investigation of the president focuses primarily on that topic. The inquiries on topics other than obstruction are broad. For example, the question “What discussions did you have during the campaign regarding any meeting with Mr Putin?” encompasses a lot of ground. You could ask a similar broad question regarding the Comey firing — “What discussions did you have about or with James Comey?” — and cover much of the ground covered in the 18 questions related to him.
If Trump does not agree to an interview, Mueller is reportedly considering subpoenaing him to testify before a grand jury. No president has ever challenged a prosecutor’s right to subpoena him to testify in court. Although former US president Bill Clinton received a grand jury subpoena for his testimony, it was withdrawn after he agreed to an interview. The Supreme Court had denied former president Richard Nixon’s challenge to a subpoena for documents and tapes as well as Clinton’s request to postpone a civil lawsuit during his presidency. The Supreme Court would likely rule against Trump, but he could use the challenge to delay Mueller’s investigation.
What is hardest to know is why Mueller is seeking an interview of Trump at what appears to be an early stage of the investigation. The simplest explanation for the early interview is that Mueller thinks his chances of getting the president to agree to an interview will decrease over time. Trump could at some point decide to take the Fifth Amendment to avoid testimony, despite any political downside.
The potential questions we saw this week explain why Trump is so concerned about his criminal liability. He faces difficult questions — not just about obstruction, but also about a host of topics related to coordination with Russia — and his lawyers appear convinced that he cannot answer them without putting himself in further jeopardy.