On Monday, the Times gave us the first glimpse of 49 questions that Special Counsel Robert Mueller could ask United States President Donald Trump, as told to Trump’s legal team during negotiations for an interview. The questions reveal the topics Mueller believes could lead to potential liability for the president and help explain why Trump’s team has urged him not to agree to an interview.
On Wednesday night, we learned that the specific questions were actually created by a Trump lawyer, Jay Sekulow, his interpretation of 16 specific subjects presented by Mueller’s team. Sekulow broke down the subjects and subtopics into the separate questions. This explains why Trump’s team had these questions — it would be highly unusual for a prosecutor to give a witness questions in advance, but it is fairly common for a prosecutor to preview potential topics for a defence attorney before an interview. For that reason, I think it’s fair to assume that Sekulow’s questions track what Mueller’s team wants to cover in an interview.
Trump’s team plans to use the questions to attack the special counsel as “overreaching” and going “beyond his mandate”, but the questions themselves suggest that Mueller has carefully stayed within his bounds. They contain nothing about obscure business deals or real estate transactions; the questions focus on coordination with Russia, obstruction of justice and topics that have been covered at length in the news media. None of the topics should have come as a surprise to Trump’s team, aside from an explosive question about efforts by the former Trump campaign chairman Paul Manafort to seek aid from the Kremlin, which is squarely about coordination with Russia.
What should concern Trump’s team is how the questions zero in on Trump’s criminal liability. They leave little doubt that Trump is in serious jeopardy, particularly regarding obstruction of justice. I concluded months ago that Mueller would likely determine that the president obstructed justice, but the questions show that Mueller has already thought about how he would prove his case. The queries ask about Trump’s state of mind when he fired James Comey, when he erupted in anger at Attorney General Jeff Sessions for recusing himself and when he considered firing the special counsel. The questions are intended to prove the case against Trump through his own words.
But it would be a mistake to count the number of questions focused on obstruction and conclude that Mueller’s investigation of the president focuses primarily on that topic. The inquiries on topics other than obstruction are broad. For example, the question “What discussions did you have during the campaign regarding any meeting with Mr Putin?” encompasses a lot of ground. You could ask a similar broad question regarding the Comey firing — “What discussions did you have about or with James Comey?” — and cover much of the ground covered in the 18 questions related to him.
The fact that the questions on topics other than obstruction are so broad does not necessarily suggest that Mueller has less evidence regarding those topics. A more likely possibility is that Mueller is not willing to tip his hand on those topics because the evidence he has regarding them hasn’t been extensively covered in the press.
The president’s team could have gathered evidence of obstruction themselves, as I did, because Trump’s tweets and private conversations about Comey are well known. But it would be much harder for his team to know exactly what evidence Mueller has regarding the Trump Tower meeting, and Mueller wouldn’t want to disclose what he knows before the interview.
Again, it’s worth remembering that Trump’s team, not Mueller, reportedly devised these questions. Mueller may have merely responded to specific inquiries from the Trump team, and they might have asked about fewer specific events related to other topics.
If Trump does not agree to an interview, Mueller is reportedly considering subpoenaing him to testify before a grand jury. The president’s lawyers are considering whether to challenge Mueller’s authority to subpoena Trump for an investigation of potential crimes he committed while in office. No president has ever challenged a prosecutor’s right to subpoena him to testify in court. Although former US president Bill Clinton received a grand jury subpoena for his testimony, it was withdrawn after he agreed to an interview.
Trump’s claim would be novel, but the Supreme Court had denied former president Richard Nixon’s challenge to a subpoena for documents and tapes as well as Clinton’s request to postpone a civil lawsuit during his presidency. The Supreme Court would likely rule against Trump, but he could use the challenge to delay Mueller’s investigation and his own testimony, which explains why Mueller is trying to negotiate a voluntary interview.
What is hardest to know is why Mueller is seeking an interview of Trump at what appears to be an early stage of the investigation. Typically, prosecutors wait until the end of an investigation to interview their most important witness, because they uncover additional evidence as the investigation progresses. So does this mean that Mueller’s investigation is wrapping up soon? Or does it mean that he is considering splitting his investigation into “phases”, with a report at the end of each phase? I’m sceptical that he’ll do that: What if he uncovers new evidence in Phase 2 that changes his view of something he had investigated in Phase 1?
The simplest explanation for the early interview is that Mueller thinks his chances of getting the president to agree to an interview will decrease over time. Trump could at some point decide to take the Fifth to avoid testimony, despite any political downside.
The potential questions we saw this week explain why Trump is so concerned about his criminal liability. He faces difficult questions — not just about obstruction, but also about a host of topics related to coordination with Russia — and his lawyers appear convinced that he cannot answer them without putting himself in further jeopardy.
— New York Times News Service
Renato Mariotti is a former US federal prosecutor.