Mueller wants to hear from Trump. What could possibly go wrong?

by Danny Cevallos /  / Updated 

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Legal analysis

What are President Donald Trump's options?

The New York Times is reporting that sources say the president's lawyers are concerned about Trump sitting down with special counsel Robert Mueller and have advised him against doing a wide-ranging interview.

NBC News reported last month that preliminary talks were underway on a format for Trump to provide information to Mueller, including possibly by written responses to questions in lieu of a formal sit-down.

The president's legal team said after The Times' article on Monday night that the negotiations with the special counsel's office are "professional and active" and "private."

If discussions break down, Trump's legal team should expect that he will be subpoenaed.

Must the president comply with a subpoena to testify before a grand jury?

The answer is probably yes.

It has been settled law for some time that the president is subject to judicial process in appropriate circumstances.

Presidents from Richard Nixon to Bill Clinton unsuccessfully opposed subpoenas. It would be a first if the president were subpoenaed for testimony about his alleged involvement in criminal activity. For now, there is enough guidance from prior cases to conclude that the Mueller team could force the testimony of the president.

Trump's lawyers surely hope they can avoid that. But the alternative isn't much better.

If Trump is forced to testify, his lawyers must undertake the most important witness preparation of their careers.

Trump is what lawyers would call a "difficult" client to prepare for testimony for several reasons:

First, he thinks he did nothing wrong.

Second, his business empire is so vast, and his dealings so spread out, he may have forgotten or never known things that he might be expected to know by prosecutors and his lawyers. Investigators by now have already formed an opinion about what he does or should know, and they're not likely to be persuaded otherwise.

Third, and probably the most dangerous, Trump is often combative when questioned. Witnesses need to understand that answering a prosecutor's questions under oath is not a fair fight. The rules are slanted heavily against the witness and in favor of the questioner. Witnesses who try to "win" the argument while testifying at trial or before the grand jury find that any victory is Pyrrhic, at best.

Even the best-prepared witness can sometimes go rogue testifying before a grand jury. And the defense attorneys wouldn't even know, because counsel is not allowed in the room.

In theory, the president could be instructed by counsel beforehand to refuse to answer questions. In a normal case, if the client has any exposure, he should invoke the Fifth Amendment. In Trump's case, if the public learns the president refused to answer questions before a grand jury, the political implications could be devastating.

Instead of attempting to force the president to testify, Mueller could allow Trump to meet with investigators in a conference room for an informal interview. Such interviews are just as dangerous as grand jury testimony in that false statements by Trump can be prosecuted, even though they are not made under oath like a grand jury appearance.

In reality, it's the least informal interview in the history of interviews. Assistant U.S. attorneys and any number of agents will be lined up in a show of force on one side of a long conference room table, with reams of documents and folders. With the president and his counsel on the other side, the special counsel's team will ask as many questions as it possibly can, studying everything Trump says and does.

At an informal interview, the Mueller team will be evaluating Trump's body language when he answers questions. Federal investigators consider themselves experienced body language interpreters. That's mostly true, but confirmation bias also plays a part when trying to read someone's tics and tells.

Most important, a "false statement" is measured against the "truth." There's a big assumption that the truth is the same thing as whatever the conclusions the Mueller team has reached as a result of its investigation.

If, for example, the investigators have adopted as fact information supplied by, say, George Papadopoulos or Michael Flynn, anything Trump says that counters that Papadopoulos/Flynn "fact" becomes "false." On the other hand, it's fair to expect the Mueller team has corroborated, fact-checked and backed up its conclusions.

If Trump's lawyers can get the special prosecutor to agree to letting the president provide written answers to questions, it would be nothing short of a miracle. Realistically, it's not going to happen. No federal investigation of this size and importance would accept written, heavily edited responses in lieu of an interview or testimony.

Trump’s legal team most likely wants to avoid his testimony. They also probably want to avoid an interview.

There's one more option: Trump could flat-out refuse to talk to Mueller in any way and refuse a grand jury subpoena.

If that happened, the federal courts would surely be called upon to decide whether the president can be compelled to testify in a criminal matter like this.

Federal courts have a long history of resolving contentious disputes between the branches of the federal government, which would presumably include this kind of largely intrabranch dispute. The Supreme Court in United States v. Nixon long ago recognized that the constitutional need for relevant evidence in criminal cases can overpower the president's claim of executive privilege. A federal court would likely order Trump to appear.

What if he ignores a federal court order?

There's historical precedent: Presidents Andrew Jackson and Abraham Lincoln arguably defied or ignored federal court orders.

And there really isn't a lot the federal judiciary could do to physically force the president to comply. What it could do is find him in contempt. Trump could try to ignore that, too.

Whether the president could even be held in criminal contempt is not as important as the fact that criminal contempt is undoubtedly a high (official) crime or misdemeanor — itself an impeachable offense.

Danny Cevallos is an MSNBC legal analyst. Follow @CevallosLaw on Twitter.

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