Despite the President’s insistence at a press conference last month that he was “looking forward” to sitting for an interview with Special Counsel Robert Mueller, the president’s legal team has steadfastly advised him to refuse the interview based on the belief that Special Counsel Robert Mueller wouldn’t risk a Supreme Court showdown by subpoenaing the president, according to the New York Times, once again citing anonymous sources familiar with the legal team’s thinking.
Of course, that Trump will probably refuse the interview has been widely suspected since reports first surfaced that Mueller would soon request it. Several Trump proxies including Chris Christie and Newt Gingrich stoked suspicions by saying publicly that the president shouldn’t sit with Mueller and his team, who would only try to “trick him and trap him,” as Gingrich put it.
Nearly every member of Trump’s legal team, which is led by longtime Washington attorney John Dowd and also includes deputy counsel Jay Sekulow and longtime Washington lawyer Ty Cobb, believes Trump should refuse the interview, as do many of the senior aides in the administration, according to the Times.
Cobb is the only one of Trump’s attorneys to advise full cooperation with Mueller, the White House lawyer whom Trump brought on back in July, and who was memorably overheard by a New York Times reporter loudly discussing the legal team’s strategy at a steakhouse, an embarrassing incident that presumably tarnished his standing on the team.
...John Dowd, the longtime Washington defense lawyer hired last summer to represent Mr. Trump in the investigation, wants to rebuff an interview request, as do Mr. Dowd’s deputy, Jay Sekulow, and many West Wing advisers, according to the four people. The lawyers and aides believe the special counsel might be unwilling to subpoena the president and set off a showdown with the White House that Mr. Mueller could lose in court.
They are convinced that Mr. Mueller lacks the legal standing to question Mr. Trump about some of the matters he is investigating, like the president’s role in providing a misleading response last summer to a New York Times story about a meeting Mr. Trump’s son Donald Trump Jr. had with Russians offering dirt on Hillary Clinton. The advisers have also argued that on other matters - like the allegations that the president asked the former FBI director, James B Comey, to end the investigation into the former national security adviser Michael Flynn - the president acted within his constitutional authority and cannot be questioned about acts that were legal.
Mr. Dowd has taken the lead on dealing with the special counsel about an interview and has been discussing the matter with Mr. Mueller’s office since December.
Others close to Mr. Trump have also cautioned him against a freewheeling interiew. Marc E Kasowitz, the president’s longtime personal lawyer from New York who initially dealt with the special counsel after Mr. Mueller took over the Russia investigation last May, has also consistently said the president should not agree to an interview.
Dowd and the rest of the legal team reason that, given the president’s tendency to exaggerate and embellish, he might stumble into lying to the special counsel, offering Mueller an opening to potentially prosecute him for perjury.
As the Times points out, Trump admitted more than two dozen times during a deposition in his lawsuit against the journalist Tim O’Brien that he had lied in the past about various subjects. Trump lost that case.
However, according to the NYT, legal precedent might favor Mueller…
“The upshot of the Nixon tapes case was that any president is going to have an extremely hard time resisting a request from a law enforcement officer,” said Neal K Katyal, an acting solicitor general in the Obama administration and a partner at the law firm Hogan Lovells.
“In general,” he added, “presidents do sit for interviews or respond to requests from prosecutors because they take their constitutional responsibility to faithfully execute the laws seriously, and running away from a prosecutor isn’t consistent with faithfully executing the laws.”
Of course, during Watergate, Nixon was clearly guilty. More than a year after launching the investigation, and despite an avalanche of leaks, it appears the special counsel has nothing to directly implicate Trump or other senior members of the administration. Because, as Peter Strzok famously put it, there’s no “there there”, Mueller might be unwilling to try his luck with the Supreme Court, knowing that the risks are asymmetric: Even if he prevails, it would look like a giant waste of time if he nothing came of it.
Meanwhile, he has already secured guilty pleas from at least two people who were involved in the campaign - including one who was briefly a senior administration official. Meanwhile, charges against Paul Manafort and Rick Gates are pending.
The president is seemingly preoccupied with the myriad legislative battles raging in the House and Senate - including the push to pass a new spending bill, raise the debt limit, strike an immigration deal and pass a disaster relief package. But we imagine he’ll make time to respond to this story shortly. After all, when he publicly announced his intention to cooperate with the investigation, he did say that it would be pending the approval of his lawyers.