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DANIEL VAUGHAN: Robert Mueller’s Lose-Lose Proposition for Trump
A suspect, but not a criminal target is how Robert Mueller’s Russia probe describes President Trump’s legal status at the moment, according to The Washington Post. Using the suspect classification, Mueller is requesting an interview with the President to come closer to a conclusion of the Russia probe. Given these revelations, the President’s legal team should reject Mueller’s requests.
There is no scenario you can dream up in which it is President Trump’s best legal interest to sit down for an interview with Robert Mueller. He has nothing to gain and everything to lose through an interview.
You may be asking, if the President isn’t a criminal target, what would he have to fear? The answer is everything.
The key here is understanding the legal chess match between Mueller’s investigation and Trump’s lawyers.
Regular readers of this space will remember I wrote back in January that Mueller wouldn’t indict the President. The current controlling opinion of the Office of Legal Counsel, a division of the Department of Justice, says you cannot indict a sitting President. Robert Mueller’s entire team is subject to this opinion. This opinion has been in effect since the Nixon administration and upheld through each successive administration.
The OLC opinion is vital here because it tells us that Mueller’s team believes it can’t name Trump anything more than a witness or a suspect in the investigation. Calling someone a target of a criminal investigation means an intent to indict that person. But we know Mueller can’t indict. In the end, Mueller’s statement that Trump isn’t a criminal target amounts to nothing more than an agreement with current OLC opinion.
Generally speaking, you can be called three different things in a federal investigation, all of which get covered in the US Attorney’s Handbook. Outside of not being investigated at all, the best description to have is that of a witness. That means you’re not a target of the investigation, nor is your conduct at issue. You’re merely a witness reporting to investigators what you know.
In contrast, a target of a criminal investigation implies that the investigators are going after you. And, most importantly for Trump’s legal team, if a person is made a target in a criminal probe, generally, federal prosecutors must notify the target before an indictment. Constitutional protections of the accused can become impediments for the government.
Between those two spots is a suspect. Being called a suspect means your conduct is at issue in the investigation, but there’s not enough evidence to make you a criminal target. Remember, in Mueller’s inquiry, current DOJ opinions state you cannot indict a sitting President, which automatically means the highest level a sitting President could have in an investigation is suspect.
In effect, this leak from the Washington Post that Donald Trump is only a suspect isn’t much a leak at all, because it’s stating the obvious.
So why does Mueller want an interview with the President?
Mueller wants two things: 1) Bolster his case for obstruction of justice by the interviewing the President, and 2) Get an opportunity to catch the President committing perjury under oath.
As I laid out in January, walking through the special counsel regulations, at the end of the investigation, Mueller will write and submit a report to the DOJ. The Washington Post says the statements will center around obstruction of justice and the President’s conduct. These reports have the option of being made public, which everyone assumes will happen.
If Mueller can get both an interview with the President and catch him lying or supporting a case for obstruction of justice, that evidence will go into the report and be made public. Those reports would then be the first sources of evidence in an impeachment proceeding against the President, which Democrats will pursue if they win back the House in 2018.
By now it should be abundantly clear why President Trump should avoid an interview at all costs. He has nothing to gain from a meeting and there’s no way that any interview would exonerate him. If Mueller’s team has evidence against Trump, then a meeting is worthless and only adds to their case. If they lack evidence against Trump, then an interview is Hail Mary shot at proving the case.
Legally speaking, there’s nothing to gain from an interview and everything to lose. Trump’s legal team has been entirely correct to refuse any interviews so far and to insist on pushing for Trump’s status in the investigation to be clarified.
For the President’s sake, they should continue to hold the line.
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