Special counsel Robert Mueller’s team will likely seek to interview President Donald Trump about his dismissal of former FBI Director James Comey, as well as his relationship with departed national security adviser Michael Flynn.
Trump told reporters Wednesday that he is "looking forward" to talking to Mueller, who is leading the federal probe into Russian election meddling and potential collusion by Trump's campaign, "under oath." It's not the first time the president has indicated a willingness to talk to the special counsel, though both he and his lawyers have since offered shifting ideas of what his cooperation could look like.
But should he? For defense attorneys, the decision about whether to let any client sit down for an “informal” interview, or a “proffer” with the FBI and federal prosecutors, is always an agonizing dilemma.
The alternative, or consequence, for a witness who doesn’t want to sit down with investigators is a subpoena to testify before the federal grand jury. Caught between this legal Scylla and Charybdis, the informal interview often seems more appealing — at first.
There are no jurors, no sworn testimony, but most importantly, no ban on having a defense attorney present. By contrast, defense attorneys are not allowed in the room when a witness testifies before a grand jury; the witness is flying solo.
Still, there are good reasons an informal interview option isn’t always a wise choice, even in the most ordinary of cases. The move can put a client at risk of making a fresh legal misstep, or reveal the defense's hand.
Even if there’s no technical risk of perjury, an interview can still result in criminal charges if someone tries to lie to investigators. It’s true that there is no threat of perjury in an interview because the testimony is not sworn. However, federal law bars people from "knowingly and willfully . . . [making] any materially false, fictitious, or fraudulent statement or representation” in the course of “any matter within the jurisdiction of the executive, legislative, or judicial branch” of the federal government. No oath or sworn testimony is required to ensnare someone who lies to the FBI.
U.S. attorneys love this statute, and at least one character in Mueller's investigation has already been charged with false statements under what is known as “Section 1001": Michael Flynn. Flynn pleaded guilty to lying to federal investigators last December.
Some Trump supporters have opposed Trump speaking to Mueller’s team for this very reason. Roger Stone, who has advised Trump both formally and informally for years, recently described the prospect of such an interview as a "suicide mission" and "a perjury trap," telling The Washington Post that "the president would be very poorly advised to give Mueller an interview.”
Additionally, if an interviewee is anticipating a full-blown trial, sitting down for a free-ranging interview with investigators can reveal the defense’s strategies and theories of the case. Trump may not be concerned about this aspect, because he has indicated that he believes he has done nothing wrong. But his attorneys may be concerned about showing their hands, even if their client is not.
Reasonable legal minds will differ, but generally speaking, there are other situations where defense attorneys might refuse an informal interview.
It could lend investigators a hand
One example is where investigators believe the client is a "target," or carries primary criminal liability, but the client adamantly insists he is innocent. In these cases, the client’s self-serving explanations won’t do much to change the prosecutors’ theory of the case. In the end, the client just helps investigators convict him, and gets nothing in return.
It might open up a whole new world of pain
Another dangerous situation is when investigators focused on one area of inquiry wind up exploring other undiscovered areas unrelated to the original probe. If this rings a bell, that's because Paul Manafort’s legal team is making a similar claim: that the investigation has exceeded its own authority. Manafort alleges in a lawsuit that Deputy Attorney General Rod Rosenstein’s appointment order improperly "grants Mr. Mueller carte blanche to investigate … charges in connection with anything he stumbles across while investigation, no matter how remote from the specific matter identified as the subject of the Appointment Order."
If the client has exposure in areas that are not related to the investigation, but uncomfortably close to it, an informal interview would be considered is too risky.
Another reason to avoid an informal interview: an unpredictable client. Sometimes, no matter how well-prepared, an interviewee will volunteer unrelated information, blurt out previously unknown information, or completely contradict his own prior statements. Investigators have every detail of the file memorized; if an interviewee says something suspect, they’ll be all over it.
The president may actually and reasonably believe that he has nothing to hide, and that he has no culpability whatsoever. Assuming that's true, there are still plenty of risks inherent to the kind of interview Mueller might seek. He can commit new, independent crimes simply by going off-script, contradicting himself, or taking a position that’s inconsistent with the Mueller team’s view of the "truth." That "truth" may in turn be influenced by what cooperating witnesses have told them — witnesses who volunteer information to help themselves in their own criminal cases.
If Trump were an ordinary client and this an ordinary federal investigation, most criminal defense lawyers would be reluctant to offer up him up for an interview. There are just too many potential downsides.
But again, this is no ordinary investigation — and Trump is no ordinary client.
Danny Cevallos is an MSNBC legal analyst. Follow @CevallosLaw on Twitter.