The release this week of a list of 48 questions the special counsel Robert Mueller wants to ask President Donald Trump leaves very little wiggle room for the president.
If Trump allows himself to be questioned, “he is walking into a classic ‘perjury trap’ that will likely end his presidency,” wrote Andrew Stoltmann, an attorney and CNBC contributor.
The president has a history of making misleading and exaggerated statements and changing his explanations around events. He has also demonstrated a penchant for shunning his lawyers’ advice when he doesn’t agree with it.
Experts were unequivocal in saying Trump faces the most peril when it comes to questions related to possible obstruction of justice.
Among other things, investigators in the special counsel probe into Russian election meddling and Trump’s possible obstruction of justice want to know more about:
- The firing of former FBI director James Comey
- Trump’s conversations with Comey about the Russia investigation
- Trump’s knowledge of former national security adviser Michael Flynn’s actions
- Trump’s reported attempts to stop Attorney General Jeff Sessions from recusing himself last year
- Trump’s rage toward Sessions when he recused himself
- Whether Trump knew Flynn lied to the FBI and could be vulnerable to Russian blackmail, and whether he acted to shield Flynn from scrutiny
- Trump’s reported attempts to fire Mueller
Trump has repeatedly offered contradictory explanations for his role in most of the events outlined above. He has also reportedly raged about why the “Trump Justice Department” is not doing more to protect him from criminal legal exposure.
In order to prove obstruction, prosecutors must establish that a defendant had corrupt intent.
If Trump agrees to an interview, Stoltmann wrote, he “would likely make the obstruction case for Mueller.”
Alex Whiting, a former federal prosecutor who is now a professor at Harvard Law School, echoed that point, adding that the questions about obstruction pose a high risk for Trump because they relate directly to his conduct.
Moreover, “they are about very specific acts and statements by Trump, and in many cases he has already spoken about them,” Whiting said. “So either he reaffirms statements or conduct that indicates obstruction, or he contradicts other witnesses and in some cases himself.”
Jeffrey Cramer, a former federal prosecutor who spent 12 years at the DOJ, countered the argument that Mueller’s questions are a “perjury trap” for Trump.
“Tell the truth and there’s no trap,” he said. “The problem, as we’ve seen with this president, is that he says anything he wants without any regard for the facts. And maybe if his lawyers give him the answers to Mueller’s questions, he’ll sit down and study them. But it’s the follow-ups that are going to get him.”
Whiting said the most difficult question for Trump to answer will likely be one related to a February 14, 2017 conversation he had with Comey, when the former FBI director said Trump asked him to let go of the bureau’s investigation into Flynn. Comey documented the meeting in a contemporaneous memo and testified to Congress that Trump asked everyone else in the room to leave before speaking to Comey about the Flynn investigation.
“Trump plainly knew there was an FBI investigation of Flynn, and he asked Comey to drop it, and he indicated consciousness of guilt by making sure it was done privately,” Whiting said. “How will Trump explain that?”
‘Fodder for impeachment’
The president’s precarious position is not limited to questions about obstruction.
Thirteen of the questions on Mueller’s list relate to the other major thread in the Russia probe: whether members of the Trump campaign colluded with Moscow to tilt the 2016 US election in Trump’s favor.
While most of Mueller’s questions in the obstruction thread relate directly to Trump’s statements and conduct, it isn’t the same case when it comes to the collusion thread.
In that investigation, Trump does not know everything Mueller knows, and if he “does not tell the truth, he runs the risk that Mueller will be able to prove he is lying,” Whiting said.
DOJ policy states that a sitting president cannot be indicted. Whether he can be subpoenaed is unclear.
But the Washington Post reported late Tuesday that Mueller’s team threatened to subpoena Trump to appear before a grand jury during a heated discussion with Trump’s lawyers in March.
The question of whether a sitting president can be subpoenaed is murky and would likely be decided by the courts. One key factor in the case would be whether the president’s lawyers can prove that the time he takes to testify is detracting from his presidential responsibilities.
“This president seems to have plenty of down time to work on his golf game, obsessively watch and comment about television news shows, and spend time at his home in Florida,” Cramer said. “It may cost him a few strokes on his short game, but he probably has time to answer questions for a day.”
Meanwhile, Trump could face a whole new level of risk — this time in the political arena — if he’s asked questions about his business dealings in Russia and with pro-Russian interests.
Trump has exhibited a fascination with Russia that goes back decades. Of particular interest to prosecutors is longtime Trump lawyer Michael Cohen’s and Russian-born businessman Felix Sater’s push to build a Trump Tower in Moscow at the height of the election. Trump signed a letter of intent to pursue the deal, but it eventually fell through.
“Nobody wants the president to have split loyalties between the US and his bank accounts,” Cramer said. “If Trump has those kinds of ties to Russian oligarchs or Russia, that would be fodder for impeachment if Democrats win the [House of Representatives] in November.”