Special counsel Robert Mueller is trying to negotiate a sit-down interview with President Trump. If he gets it, we now have a clearer sense of what the former FBI director wants to talk about: the numerous instances in which it appears that Trump might have tried to obstruct justice.
On Monday night, the New York Times published a report with the questions Mueller’s staff told Trump’s lawyers they want to ask. The questions range from what Trump was thinking when he fired former FBI Director James Comey, who was leading an investigation into possible collusion between Russia and the Trump campaign, to what he knew about former National Security Adviser Michael Flynn’s contacts with Russia’s ambassador to the US.
Legal experts told me the questions seem focused on “criminal intent.” Mueller is reportedly investigating Trump for potential obstruction of justice as part of his Russia probe, but that requires first showing that the president was intentionally trying to impede the investigation.
The hope for Mueller is that Trump says things that make Mueller’s case for him, even accidentally. That could include Trump saying that he fired Comey to disrupt the Russia investigation, or that he knew Flynn had lied to federal agents and wanted Comey to not prosecute Flynn.
“He might blurt out something that he doesn’t realize is incriminating because he doesn’t understand the nature of his potential criminal liability,” Jens David Ohlin, a professor at Cornell Law School, told me.
That seems like a fair bet: Trump reacted to the New York Times article on Tuesday morning with a tweet that made clear he had little idea what obstruction of justice actually was.
“It would seem very hard to obstruct justice for a crime that never happened!” he wrote.
It would seem very hard to obstruct justice for a crime that never happened! Witch Hunt!— Donald J. Trump (@realDonaldTrump) May 1, 2018
That’s flatly wrong. Obstruction of justice involves interfering with an investigation, regardless of whether the investigation uncovers a crime.
Prosecutors can prove intent to obstruct justice without a direct confession using things like documents or interviews with witnesses who can help demonstrate what a suspect was thinking at a given moment. But Mueller’s questions show that he at least wants a shot at getting Trump to address the intent question himself.
The stakes couldn’t be higher: If Trump admits under oath that he fired Comey to end the Russia investigation, as the president suggested during a May 2017 interview with NBC, it could help Mueller prove Trump obstructed justice. And even if Trump is never charged by Mueller, proof of obstruction could haunt the rest of his presidency and even serve as the backbone of articles of impeachment.
Mueller’s questions are designed to force Trump to explain the reasoning behind his actions
Trump’s legal team and Mueller’s office have been negotiating for months over the terms of a potential interview. Trump’s former personal lawyer John Dowd insisted on getting questions in advance to decide whether an interview was a good idea. Mueller’s team read Trump’s lawyers a list of questions in March, according to the New York Times.
Trump still wanted to do the interview, but Dowd saw the questions as a setup, and decided to quit, according to the report. Dowd left the legal team later in March.
The questions the Times published are based on notes taken by Trump’s lawyers during their conversation with the Mueller team. Trump called the disclosure of the questions to the paper “disgraceful” in a tweet Tuesday.
The questions focus primarily on the firing of Flynn and of Comey.
Flynn discussed US sanctions with Sergey Kislyak, then the Russian ambassador to the US, after Trump won the election but before he took office. Flynn lied to federal investigators about the call, a crime he pleaded guilty to in December of last year.
According to Comey, Trump told him that he hoped Comey would “let [Flynn] go” during a February 14, 2017, meeting. If Trump knew that Flynn had committed a crime when he made his statement to Comey, and was hoping to make the charges go away by talking to Comey, that would appear to be obstruction of justice.
Several of Mueller’s questions involve what Trump knew about Flynn’s calls with Kislyak, and what he said to Comey about Flynn.
“What was the purpose of your Feb. 14, 2017, meeting with Mr. Comey, and what was said?” one question reads.
Most of the questions are broad and look at what Trump was thinking, as opposed to specific factual questions.
“These are open-ended questions, in response to which investigators would of course like to hear the president’s on-the-record explanation,” Lisa Kern Griffin, a professor at Duke University School of Law, told me.
Griffin said she thinks it’s unlikely that investigators “actually expect to get answers.”
“It would be disastrous for the president to submit to any interview in which he has potential liability for lying,” she said.
There’s a tantalizing and mysterious Russia-related question
Although most of the questions focus on Comey and Flynn, some do delve into possible collusion between Trump aides and Russian operatives. One question in particular suggests that Mueller has information on communication between the Trump campaign and Russia that hasn’t previously been reported.
“What knowledge did you have of any outreach by your campaign, including by Paul Manafort, to Russia about potential assistance to the campaign?” one question asks.
Mueller indicted the former Trump campaign chair on a range of financial crimes in October, and Manafort had contact with at least one man who Mueller says was a Russian operative, according to court documents. Until now, though, there have been no reports that Manafort directly requested assistance for the campaign from Russia.
Even if Trump’s legal team wasn’t aware of the request for help by Manafort, Ric Simmons, a law professor at Ohio State University, told me that including it in an advance list of questions wouldn’t pose much of a risk for Mueller.
“Mueller already has some evidence, and he already has numerous cooperating witnesses,” Simmons said.
There are other questions that could be tied to collusion, according to Vox’s Andrew Prokop:
Several questions on the list published by the New York Times on Monday evening are quite obviously about potential collusion. Mueller wants to ask Trump what he knew about Russian hacking and social media interference during the campaign, [and] the Trump Tower meeting with a Kremlin-tied lawyer.
It’s still unclear whether Trump would sit for an interview. White House counsel Ty Cobb said last month that Trump still wants to do it, and Trump’s new personal lawyer Rudy Giuliani met with Mueller’s team last week to continue negotiations about the precise terms of what would be a historic encounter.
If the meeting does end up taking place, we’ll all have a much better sense of what to expect from the end of Mueller’s investigation.