As negotiations continue between Robert Mueller and Rudy Giuliani over a potential sit-down interview with President Donald Trump, Giuliani has gone on a public-relations tour announcing that he has offered to bring the president in to speak with Mueller, under certain (unspecified but certainly wildly self-serving) conditions. According to Giuliani, it is now up to Mueller to accept or reject those proposed conditions. Some have likened the back-and-forth to a chess match, but it’s more like the parties are actually playing two different games: Mueller is playing the legal game while Giuliani is playing a political one.
Anytime a prosecutor wants to speak with a person about a criminal matter, there’s an easy way (an interview) and a hard way (a subpoena). In an interview, the subject agrees to come in to the prosecutor’s office, typically with a lawyer, and answer questions from the prosecutor. There is no grand jury or stenographer, and the witness is not placed under oath. Notwithstanding the relatively informal setting, if a subject lies, he can be prosecuted for making false statements. Martha Stewart famously was charged, convicted, and imprisoned not because she lied under oath in a grand jury but because she lied to a prosecutor in an interview.
At times, the prosecutor will agree to certain narrow limitations, but nothing remotely resembling the extraordinary conditions Giuliani apparently has proposed to Mueller. Giuliani has reportedly requested that Mueller submit written questions and that the president be permitted to respond in writing. I’ve done hundreds of subject interviews as a federal prosecutor, and never once submitted a single written question. That’s because it is essential to the prosecutor to get a direct, in-person read on the subject. There is no substitute for sitting in the same room as a subject and gauging his responses, body language, and demeanor as the questioning progresses. Any written responses to Mueller’s questions would be heavily lawyered, likely to the point of complete uselessness.
Even more conspicuously, Giuliani appears to insist that certain subject-matter areas, including obstruction of justice, must be off-limits to Mueller’s interrogation. Giuliani has complained that any such questions would be a “perjury trap.” Here’s a little free legal advice to Giuliani and the president: The best way to avoid a perjury trap is to not commit perjury. Many apt comparisons have been made by others: Giuliani’s argument is like calling a bank a “bank robbery trap,” or a DUI checkpoint is a “DUI trap.” Indeed, it is unsettling to see the president of the United States take any position other than “Ask me whatever you want and I’ll answer because I want the truth to come out”—never mind a position of “I can’t possibly answer questions from you because that would cause me to commit perjury.”
Mueller understandably might be willing to agree to more or different conditions than usual, given that his subject is the president. However—as Giuliani surely knows based on his own long experience as a federal prosecutor—it is unlikely Mueller will agree to the extraordinary conditions proposed here. That would set the stage for the next step in the showdown. Mueller could walk away and simply carry on his investigation without speaking to Trump. That seems unlikely, given that Mueller has been working to get Trump to the table for at least eight months now. Further, for Mueller to walk away would undermine his standing and authority. The message would be: Put up a hard enough fight and insist on ridiculous enough conditions and I’ll leave you alone. That’s not Mueller’s style.
So the likely next step would be issuance of a subpoena and that’s when the different games kick in. Mueller is looking at this legally. He knows that, if he issues a subpoena, Trump will fight it in the courts, and ultimately the matter will end up in the Supreme Court. Mueller knows history and case law, both of which suggest he would prevail in a subpoena battle with the president. In 1974, in United States v. Nixon, President Richard Nixon asserted executive privilege to challenge a subpoena from the Watergate prosecutors calling for production of the now-infamous White House tapes. The Supreme Court, in a unanimous 8-0 decision (including three justices who had been nominated to the court by Nixon himself), delivered the ultimate good-news/bad-news decision to Nixon. The good news: Executive privilege does exist. The bad news: You can’t use it here. The court ruled that executive privilege is intended to protect the nation’s military and diplomatic secrets, not to insulate individuals against potential criminal liability. Just 16 days after the court’s decision, and the revelation of the “smoking gun” tape, Nixon resigned.
Three decades later, President Bill Clinton received a subpoena for grand-jury testimony from independent counsel Kenneth Starr. Clinton initially resisted the subpoena but —aware of the Nixon precedent and ever the pragmatist—eventually backed down and “agreed” to give videotaped testimony to the grand jury. (During that testimony, Clinton delivered one of the more indelible lines of his career: “It depends on what the meaning of ‘is’ is.”)
Mueller of course knows about these cases and likely has concluded that, as a legal matter, he will prevail in a subpoena battle. Giuliani must know the same. As much as he has become a cartoonish buffoon, Giuliani still must have a grasp of basic tenets of legal principle. The Trump team may be counting on newly nominated Judge Brett Kavanaugh to make good on his prior writings indicating hostility to the notion of enforcing a subpoena against a sitting president. But even if Kavanaugh is confirmed in time to rule on a Trump subpoena battle, it seems unlikely that even the most partisan court can contort itself to get around the Nixon and Clinton precedents.
On Wednesday, Giuliani and co-counsel Jay Sekulow staged a bizarre, oh-so-spontaneous call on Sekulow’s radio show. “Host” Sekulow and “caller” Rudy from New York talked about how they had sent a letter to Mueller offering to do an interview, with certain (unspecified) conditions. Giuliani said the same in various interviews with actual media outlets.
Giuliani’s strategy here appears to be more political than legal. Giuliani knows that if he demands unreasonable conditions, and Mueller declines, then Mueller likely will issue a subpoena. The court battle over the subpoena, in turn, will take several months, running up to and through the midterms. If that happens, Giuliani and Trump can claim: “Hey, we offered to come in for an interview, Mueller rejected us, now we are in court thanks to Mueller, so blame him for ‘politicizing’ this investigation.” This strategy dovetails with Trump’s “Rigged Witch Hunt” refrain and the notion that Mueller’s investigation is politically motivated. At a minimum, this approach will mobilize hardcore Trump supporters. It may even lead to long-term public fatigue as the case winds its way through the courts over many months. Mueller, of course, has run the tightest of ships and will say nothing publicly to rebut these accusations, no matter how much Giuliani taunts him.
Assuming Mueller prevails on the legal game and the courts uphold a subpoena, and that Trump and Giuliani succeed at their political game, the Trump team still will have to deal with one lingering problem: the subpoena itself. Whatever happens at the polls, if the court agrees that Trump must answer the subpoena, then Mueller has the right to put Trump in front of the grand jury. That is a terrifying scenario for the Trump team. Not only would Trump have to answer questions directly, in person, from Mueller (or one of Mueller’s elite prosecutors), but—and this is the big difference between an agreed-upon interview and a subpoena—Trump’s attorneys cannot be in the grand-jury room with him during questioning. Giuliani must shudder to think of how poorly that would go, as the president, unplugged, surely would lurk between lying his face off and openly boasting about crimes he has committed.
So what would Giuliani do in this scenario? Probably make like Clinton and cut his losses. Faced with a bad court ruling requiring Trump to testify in front of a grand jury, Giuliani likely would significantly revise his recent offer to do a “voluntary” interview under certain conditions, with those conditions loosening to the point of Mueller’s satisfaction. Trump, unaccompanied, in the grand jury has to be a third rail in the minds of his attorneys, so they likely will accede to almost anything Mueller demands in order to avoid that scenario.
Ultimately, then, Mueller just may get what he wants—the ability to sit directly across from the president and ask questions as he sees fit. At the same time, Trump and Giuliani seem very likely to get what they want—the ability to cry foul and to benefit at the polls in November.
Correction: This article previously stated Clinton fought a subpeona in court.