The New York Times recently obtained and published a list of more than 40 questions that special counsel Robert Mueller reportedly wants to ask President Donald Trump. Is this leak a carefully orchestrated move in a chess match, or a desperate attempt to roil the investigation?
The questions themselves seem thorough but straightforward—questions relating to widely reported events, such as the firings of former FBI Director James Comey and former national security adviser Michael Flynn and the June 2016 meeting at Trump Tower.
The only surprise was a question about outreach by the Trump campaign, including Paul Manafort, to Russia for election assistance. Previous reports had indicated offers of assistance going only in the other direction. This could be a significant new reveal (it’s unlikely Mueller would ask a question based on a false premise) or it could just be a scrivener’s error, in light of the way these questions were obtained by the Times. Mueller’s team reportedly read the questions over the telephone to members of Trump’s legal team, who wrote them down. As anyone who has ever played the old “Telephone” game knows, details are sometimes lost in the translation, and so it may be that this development is nothing new.
And so the “what” regarding these questions is mostly unsurprising. The surprise is the “who” and the “why.”
First, who might have leaked these questions? Mueller himself or someone on his team could have done so, but Mueller is known for his tight-lipped approach to investigations. Not only is it against his nature to leak these questions, it is also against his interest. Sharing these questions with the media telegraphs areas of inquiry to all other witnesses. The president may get the extraordinary courtesy of advance notice of the questions to induce him to come to the table, but no other witness will likely receive this unusual benefit. Publishing these questions only stands to compromise Mueller’s investigation, and so it seems unlikely that the leak came from his camp.
That leaves Trump’s team with Rudy Giuliani, new to the team. These questions were not leaked when they were first communicated to Trump’s team in March, but only now, after Giuliani has come on board.
Why might Trump’s legal team want to leak these questions? The answer may lie in Trump’s morning tweets. Trump criticized the leak, and then stated: “No questions on Collusion. Oh, I see...you have a made up, phony crime, Collusion, that never existed, and an investigation begun with illegally leaked classified information. Nice!” A second tweet said, “It would seem very hard to obstruct justice for a crime that never happened! Witch Hunt!”
He seems to be making the public case that the investigation is now all about obstruction of justice, and not about coordination with Russia to interfere with the election. Even this premise is false, in light of the fact that several questions relate to contacts with Russians. Nonetheless, more than half of the questions appear to relate to obstruction of justice. Trump seems to be arguing that this focus on obstruction of justice exposes the investigation as an unfounded, politically motivated scandal.
If this leak came from Trump’s team, it is reminiscent of the Sam Nunberg media blitz after he received a subpoena to testify before Mueller’s grand jury and to produce email messages with certain individuals. Nunberg seemed to think that he could generate outrage by going public with his story about his perceived overreach by the special counsel. That strategy failed miserably and Nunberg ultimately complied with the subpoena.
Of course, the law does not require proof of the underlying crime to make out a case for obstruction of justice because sometimes the obstruction is successful. But Trump likely is less concerned about the court of law than he is about the court of public opinion. Because he likely would face impeachment instead of criminal charges, this may be a shrewd move.
Mueller likely wants to talk to Trump as part of his quest for the truth. Mueller no doubt wants to learn what happened in our election and whether Trump had the corrupt intent necessary to obstruct justice. If Trump has leaked these questions, it seems likely that he has decided not to talk to Mueller voluntarily. Mueller can subpoena Trump, but such a step could lead to lengthy court hearings and delay. Will this strategy to generate public outrage garner sympathy for Trump or backfire as it did on Nunberg?
Your move, Mr. Mueller.