Special counsel Robert Mueller has reportedly made an offer to Donald Trump’s legal team on the parameters of an interview as part of the Russia investigation. If true, this is a deal the president should seriously consider.
According to the press, Mueller is offering an interview on four main areas: the Trump Tower meeting with Russian sources and Donald Trump Jr., the president’s role in putting out a misleading account of that meeting, the firing of former FBI Director James Comey, and the meeting of former National Security Adviser Michael Flynn. Notably missing from that list are the subjects that should be the greatest concern for Trump, including his financial dealings (including deals on a Trump Tower in Moscow) and the payments to alleged paramours Stormy Daniels, Karen McDougal and others to remain silent before the election.
{mosads}What is most striking about these areas is that they happen to be the areas where, even if things go badly, Trump has strong defenses. It does not mean that Mueller could not charge on these allegations, but he would likely lose on the evidence currently known. Obviously, this will require careful preparation and Trump would have to exercise uncharacteristic levels of control in his answers. The president’s just-resigned counsel, John Dowd, reportedly may have doubted the ability to keep Trump out of a perjury trap. Yet, with the exception of a false statement or some undisclosed bombshell evidence, these limits are as good as it is going to get, and it could get worse.
Trump Tower
The meeting of Trump Jr., former Trump presidential campaign manager Paul Manafort and Trump son-in-law Jared Kushner with Russian lawyer Natalia Veselnitskaya and others in Trump Tower in New York was based on a promise to share evidence of criminal wrongdoing by the Clinton Foundation. Rod Goldstone, a promoter acquainted with the Trumps, told Trump Jr., “This is obviously very high-level and sensitive information but is part of Russia and its government’s support for Mr. Trump.”
Once at the relatively short meeting, Veselnitskaya reportedly focused on sanctions of the Magnitsky Act, including the bar on Russian adoptions. Veselnitskaya had worked for years against the ban and raised it with Democrats and Republicans alike. Indeed, when she was turned down for a visa during the Obama administration, she was granted a “special immigration parole” to enter the United States by President Obama’s attorney general, Loretta Lynch.
If the meeting were part of a secret collusion, this would be a rather curious way to go about it, calling a conspiratorial meeting in an email at Trump Tower with unknown attendees. What is clear is that, as late as June 2016, a meeting with the Russians had to be arranged through a friend with a promise of criminal evidence to secure a meeting. Goldstone has admitted publicly that he “hyped the message” to get a meeting with Trump Jr. Even if Veselnitskaya had supplied evidence of criminal conduct by the Clintons or opposition research, it would not have constituted a crime.
Moreover, the Clinton campaign not only paid a huge amount to gather potentially incriminating evidence on Trump but the resulting dossier was composed by a former British spy with information from Russians. The Clinton campaign long denied any connection to the dossier and only admitted the funding relatively recently, when confronted by reporters. If Mueller wants a criminal charge on that record, he will likely lose.
Air Force One
Rather than taking the obvious path of making full disclosure, Trump Jr. issued a misleading statement about the meeting. The statement said that he and the Russian lawyer had “primarily discussed a program about the adoption of Russian children” and emphasized that the subject of the meeting was “not a campaign issue at the time.” The statement, reportedly dictated by President Trump on Air Force One, did not disclose the stated purpose of the meeting or promise of material from the Russian government.
Like the Trump Tower meeting, the statement was another self-inflicted wound. Nevertheless, there was no crime in holding the meeting, and it was not a crime to spin the resulting controversy. Politicians have long spun scandals. When confronted about NSA leaker Edward Snowden’s disclosure of a massive surveillance program on American citizens, President Obama went on Jay Leno’s show and proclaimed, “There is no spying on Americans.” His CIA director, James Clapper, went before Congress and denied the existence of such a program, a statement he admitted later was a lie.
For her part, Hillary Clinton adopted a series of denials and defenses in her email scandal, including statements now established as false. The State Department later refuted her claim that she was given approval to use her personal server for State Department business. Obviously, some spins can become criminal matters, such as Bill Clinton lying under oath that he never had a sexual relationship with Monica Lewinsky and then insisting that it depended on “what the meaning of the word ‘is’ is.” If Mueller wants to charge Trump with spinning a scandal, he would have to frog march virtually every member of Congress and every living president to federal lockup.
James Comey
Perhaps the greatest blunder of this administration was Comey’s firing. Trump not only fired him in the midst of the Russian investigation but raised the investigation repeatedly with Comey before firing him. The problem is that Trump had ample reason to fire Comey, despite the poor timing of the decision. While Trump admitted in an interview that he was thinking of the Russian investigation when he fired Comey, he did not say that was the reason for the firing.
In a memo, Deputy Attorney General Rod Rosenstein listed former attorneys general, judges and leading prosecutors who believed Comey “violated his obligation to ‘preserve, protect and defend’ the traditions of the department and the FBI” and “violated long-standing Justice Department policies and tradition.” He also noted that Comey “refused to admit his errors.”
Moreover, Comey himself admitted under oath that Trump agreed with him that the Russian investigation should run its course. (Trump was reportedly angry that Comey had told members of Congress that he was not under investigation but refused to confirm that publicly). Firing Comey would not have ended the Russian investigation, and there is no evidence that Trump sought to bar further investigation. Even if Mueller were to secure an indictment on that mixed record, he would have to call Comey, who is damaged goods, as a witness.
Not only did Comey leak information to the press after his firing but, according to fired FBI Deputy Director Andrew McCabe, Comey knew of his giving sensitive information to the press on the Clinton investigation. Comey expressly denied leaking information or approving such leaks by subordinates in testimony to Congress. Mueller could call Comey as a witness, but a jury might have difficulty seeing the moral high ground from where Comey is sitting.
Michael Flynn
Finally, there is Michael Flynn, charged with misleading federal investigators on his discussions with Russian diplomats. There was nothing illegal or unprecedented in Flynn meeting during the Trump presidential transition with the Russians, or his discussion of sanctions. However, he reportedly denied discussing sanctions and pleaded guilty to making a false statement.
Trump asked Comey to go easy on Flynn after Flynn resigned. This has been widely portrayed as evidence of obstruction or witness tampering. However, Trump could simply argue that he felt Flynn had already suffered enough with the resignation and was expressing loyalty for a longtime friend and supporter. Mueller could always try to portray the comments as obstructive rather than empathetic, but that is pretty thin soup for a criminal case against Trump.
None of this means Trump cannot get himself into serious danger in an interview, with incautious or false statements. There also is the possibility of undisclosed evidence, particularly as a result of Flynn’s cooperation agreement. However, these four categories represent the most predictable, frontal assaults on Trump where the armor is the thickest. Trump will have counsel present and can insist that any later questions or issues be addressed in written interrogatories to counsel. In an otherwise bad situation, that is not a bad deal.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.