Shall we not play a game?
Perhaps the raid on Michael Cohen’s office yesterday had a substantial benefit for Donald Trump. According to ABC News, the president has begun to realize that providing investigators a golden opportunity to set off perjury traps may not be a great idea after all:
In the wake of an early morning FBI raid on his personal attorney, sources close to President Donald Trump and his legal team say the president is “less inclined” to sit down for an interview with Special Counsel Robert Mueller’s team.…
Yet in the wake of Monday’s FBI raid on the home and office of Michael Cohen, the president’s longtime personal counsel, multiple sources tell ABC News things might be changing and that the president per one source is “understandably less trusting” of Mueller and his team.
Multiple sources say advisers don’t know how to deal with the president’s frustration and are bracing for what he may do next. One source in close contact with the White House says any and all possibilities are in play.
Gee, who could have told Trump not to trust federal prosecutors in an interrogation? John Dowd, for one, who left Trump’s legal team last month reportedly because he was reluctant to have Trump sit down for a chat with Mueller’s team. If the ABC News report is accurate, does Dowd get invited back onto the team and others hit the road? Recall what Robert Costa and Carol Leonnig wrote about the internal debate a week ago after Mueller told the White House that Trump wasn’t a “target” of his probe:
Mueller’s description of the president’s status has sparked friction within Trump’s inner circle as his advisers have debated his legal standing. The president and some of his allies seized on the special counsel’s words as an assurance that Trump’s risk of criminal jeopardy is low. Other advisers, however, noted that subjects of investigations can easily become indicted targets — and expressed concern that the special prosecutor was baiting Trump into an interview that could put the president in legal peril.
John Dowd, Trump’s top attorney dealing with the Mueller probe, resigned last month amid disputes about strategy and frustration that the president ignored his advice to refuse the special counsel’s request for an interview, according to a Trump friend. …
Dowd told the president the case against him was weak, but warned Trump he could create criminal jeopardy for himself if he agreed to an interview and misspoke under oath, the friend said. Dowd repeatedly pointed to the Trump campaign advisers who have pleaded guilty to making false statements in the Mueller probe — including Flynn, adviser George Papadopoulos and former campaign official Rick Gates.
“Mueller hasn’t hesitated to [charge] people for lying on some pretty tangential stuff,” said Solomon Wisenberg, a former deputy independent counsel in the probe of President Bill Clinton.
However, Sekulow and Cobb gave the president the opposite advice as Dowd: that it would be politically difficult for Trump to refuse to answer questions after insisting for months there was no collusion or crime, according to three people familiar with their advice.
If Trump has changed his mind about sitting down for an interview, it’s a smart move that has been a long time coming — at least legally, if not politically. Politically it would have been smarter to refrain from making public promises to sit down for an interview in the first place. That’s water under the bridge by now, but Trump might finally realize that it’s better to cut one’s political losses rather than doubling down on potential legal liabilities. Mueller’s playing for keeps, and he has a lot less to lose than Trump does.
Both Allahpundit and I have written repeatedly about why it would likely be a disastrous move to conduct the interview, as has Andrew McCarthy at National Review. In his most recent explanation this weekend, the former federal prosecutor again emphasized that Trump remains in legal jeopardy with or without the “target” tag, and that there would be almost no chance of an interview turning out well for the “subject” of a probe either:
There are many legal experts who believe, as I believe, that Mueller has no obstruction case as a matter of law unless he can prove that Trump did something that was inherently illegal to influence an investigation — e.g., bribing witnesses or suborning perjury. To the contrary, based on what we currently know, Trump recommended (but did not direct) that the investigation of Flynn be dropped, and fired the FBI director three months later. Those are legal acts — i.e., acts that are within a president’s constitutional authority — even if we may judge them unwise or unsavory.
If I am right, legal acts cannot predicate an obstruction charge. Why should the president of the United States risk exposing himself to false-statements charges to help a prosecutor explore something that is not a crime?
On the other hand, let’s say I am wrong about obstruction law. Some experts theorize that a president could be liable based on acts that, though ostensibly legal, are carried out with corrupt intent (e.g., a president pardons someone as inducement not to testify against the president). If, for argument’s sake, we accept this theory, corrupt intent would be an essential element of the obstruction offense. That means it would be the prosecutor’s burden to prove it beyond a reasonable doubt.
Even if Trump is utterly convinced that he did not have corrupt intent, how is it in his interest to consent to an interview on this point?
It is highly unlikely that the special counsel will ever have a witness, other than Donald Trump, who can fill this hole in the case — someone who can convincingly testify that Trump told him, “Yeah, I had to get rid of Comey because the FBI was closing in on me over that deal I cut with Putin.” Keep in mind: If Mueller had such a witness, he would not have told Trump’s lawyers that Trump is not a target.
No, to prove Trump’s state of mind, Mueller needs testimony from Trump. If the president were to tempt fate and provide it, this would be where the expertise of Mueller’s team comes in.
