WASHINGTON — Anticipating that special counsel Robert Mueller will ask to interview President Donald Trump, the president's legal team is discussing a range of potential options for the format, including written responses to questions in lieu of a formal sit-down, according to three people familiar with the matter.
Lawyers for Trump have been discussing with FBI investigators a possible interview by the special counsel with the president as part of the inquiry into whether Trump's campaign colluded with Russia during the 2016 election.
A source familiar with a late December meeting between Trump's legal team and representatives from the special counsel's office said the timing of a possible interview or written response has not been set but could come in a matter of weeks.
The source described the talks as a "collaborative approach." The discussions were also described by one person with direct knowledge as preliminary and ongoing.
Trump's legal team is seeking clarification on whether the president would be interviewed directly by Mueller, as well as the legal standard for when a president can be interviewed, the location of a possible interview, the topics and the duration. But the president's team is also seeking potential compromises that could avoid an interview altogether, two of those interviewed told NBC News.
With the possibility now looming that the president himself could be subject to an interview by the FBI or Mueller's investigators, Trump's legal team has been debating whether it would be possible to simply avoid it. One individual familiar with the strategy said those internal discussions within Trump's legal team began shortly after the president's former campaign manager, Paul Manafort, was indicted in late October for money laundering in connection with his business dealings with Ukraine.
Trump's legal team sat down with representatives from the special counsel's office in late December.
In a statement to NBC News, Trump lawyer John Dowd said: "The White House does not comment on communications with the OSC (Office of Special Counsel) out of respect for the OSC and its process. The White House is continuing its full cooperation with the OSC in order to facilitate the earliest possible resolution."
Peter Carr, spokesperson for the special counsel's office, declined to comment.
In addition to the possibility of suggesting the president submit written responses in place of an interview, a second person familiar with the president's legal strategy said another possibility being contemplated was an affidavit signed by the president affirming he was innocent of any wrongdoing and denying any collusion. It was not clear what such an affidavit might state regarding the president's firing of former FBI Director James Comey in May 2017 at a time when Comey was leading the Russia probe.
Justice Department veterans cast doubt on the possibility that Mueller, who served as FBI director for 12 years, would forgo the chance to interview the president directly.
"Prosecutors want to see and hear folks in person," said Chuck Rosenberg, former U.S. attorney for the Eastern District of Virginia and chief of staff to FBI Director Comey. "They want to probe and follow up. Body language and tone are important," said Rosenberg, now an NBC News analyst. "And they want answers directly from witnesses, not from their lawyers. The odds of prosecutors agreeing to written responses are somewhere between infinitesimally small and zero."
Criminal defense attorney Alan Dershowitz called the Trump team's maneuvers "gamesmanship. It's what any criminal defense attorney would do."
"I would never let the prosecution interview my client," said Dershowitz, "but I don't represent the president of the United States, and presidents don't want to plead the Fifth. So this route makes sense."
Dershowitz added that the defense's strategy does not mean they are presuming Trump is guilty of wrongdoing.
The White House and Justice Department initially tried to portray the Comey firing as a result of Comey's handling of the investigation into Clinton. But in an interview with Lester Holt of NBC News two days after the firing, Trump tied his actions directly to Comey's investigation of Russia. Comey later testified that Trump tried unsuccessfully to get Comey to drop his investigation into Michael Flynn, Trump's first national security adviser.
The president has continued to insist publicly that he is not under investigation and has described the Justice Department investigation as a "hoax" and a conspiracy cooked up by the FBI in concert with his political opponents.
But the intelligence community has been definitive that Russia attacked the integrity of the 2016 election and sought to push the outcome in Trump's favor. While Trump said during the campaign that he was not aware of any of his aides meeting with Russians, multiple members of his own family and inner circle have since acknowledged that they did.
"If there's really nothing to hide, then I would think there's no danger in him sitting down with anyone and speaking freely to them"
Some of the president's own actions following his inauguration, including the handling of the White House departure of Flynn and the firing of Comey in May 2017, have caused the probe to widen to include the possibility of obstruction of justice related to the initial investigation. The special counsel is also delving into the actions of some of the Trump children and the president's son-in-law, who were involved in the campaign and the presidential transition, the decision to fire Comey and public statements regarding a meeting with Russian individuals during the campaign.
In June 2017, Trump disputed Comey's testimony to Congress that the president attempted to interfere in the FBI's investigation of Flynn and said he was "100 percent" willing to testify under oath about his conversations with Comey. Asked by a reporter Saturday if he was willing to speak with Mueller and his team, Trump initially said "yeah," but it was unclear whether he was committing to an interview or acknowledging the question. He did not elaborate. Instead, he reasserted that there was no collusion between his campaign and Russia and sought to focus attention on his former Democratic opponent.
"Just so you understand, there's been no collusion, there's been no crime, and in theory everybody tells me I'm not under investigation. Maybe Hillary (Clinton) is, I don't know, but I'm not," he told reporters at Camp David. "But we have been very open. We could have done it two ways. We could have been very closed, and it would have taken years. But you know, sort of like when you've done nothing wrong, let's be open and get it over with."
"Because, honestly, it's very, very bad for our country," the president said. "It's making our country look foolish. And this is a country that I don't want looking foolish. And it's not going to look foolish as long as I'm here."
Hillary Clinton, who lost the 2016 election to Trump, sat for a daylong interview at FBI headquarters during the campaign as part of a separate probe into whether she mishandled government email. The FBI found no evidence of a crime but Trump continued to cite the interview throughout the campaign and called for her imprisonment.
Robert Dallek, a presidential historian, said any risk in Trump speaking to the special counsel under oath depends on what he would say.
"It very much depends on whether the president has things to hide. If there's really nothing to hide, then I would think there's no danger in him sitting down with anyone and speaking freely to them," Dallek said. "But if there are things to hide, obviously there are risks."
Former President Bill Clinton, who was under investigation by an independent counsel, testified under oath and on camera before a federal grand jury for some four hours in 1998 in connection with a relationship he had with a White House intern and previous relationships with other women while married. The dramatic testimony drew widespread national attention and, under questioning about the intimate nature of his relationship with Monica Lewinsky, Clinton appeared uncomfortable and halting at times.
But Dallek couldn't recall another sitting president in discussions to be interviewed in a criminal investigation during his first year in office.
"This has never happened before," Dallek said. "Maybe later in the administration, but in the first year to be under this kind of scrutiny and attack, it's devastating to an administration."