Over the past several months, there has been widespread discussion about the prospect of an interview of President Donald Trump by Special Counsel Robert Mueller in the Russia investigation. Each side of the fencing match -- the Special Counsel and the President's legal team -- has lunged and parried with skill. What remains unclear is whether the sides will be able to reach a compromise that -- principally-- meets each of their needs and addresses their primary concerns.
Having negotiated and/or helped conduct interviews of presidents in our independent counsel investigations (George H.W. Bush -- Bill Clinton passport tampering, William Jefferson Clinton - Whitewater/Monica Lewinsky), we thought that it might advance the dialogue if we were to offer our thoughts on what it might take to reach an agreement that is fair and reasonable and that takes into account the legal and practical considerations of each side within the framework of relevant Department of Justice (DOJ) guidelines.
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We understand that each of the parties may find aspects of our suggestions to be less than ideal. We believe, however, that there is too much at stake if the parties are unable to agree to a voluntary interview and Special Counsel Mueller issues a subpoena to the President who, in turn, moves to quash it. That could set off a prolonged legal battle that could be harmful to both sides as well as to the country.
Here is a list of the terms and conditions that we believe will provide the parties with a reasonable and workable framework for a voluntary interview, while at the same time, allowing the Special Counsel to complete his investigation, protecting the institution of the presidency, and providing the President with the assurances that he needs:
1. The parties should agree to a time and place of the interview, giving as much deference to the President's schedule as reasonably possible.
2. The parties should agree to keep confidential the terms and conditions of the interview and its content, unless otherwise ordered by a court.
3. The parties should agree that counsel for the President can be present for the interview and may make objections according to the rules of evidence and criminal procedure.
4. The interview should be videotaped so that there are no disputes about what was asked and how it was answered and, if necessary, for later review by the grand jury.
5. Special Counsel Mueller should be allowed all the time that he considers necessary to conduct his interview, being sensitive to the imperatives of the Office of the President.
6. In advance of the interview, the President should be given a list of all topics intended to be covered, but he should not be provided with specific questions, except with respect to certain questions related to potential obstruction of justice.
7. With respect to questions involving potential obstruction of justice not covered by privilege that relate specifically to the President's inherent legal authority to hire, fire, and direct the conduct of inferior executive branch officers, those questions should be submitted to the President, and answered by him, in writing, in advance of the interview. We believe that these questions go to the heart of presidential decision-making and communications, and that Special Counsel Mueller's legal position, were he to endeavor to base an obstruction of justice case on such conduct alone, is questionable given the President's Article II constitutional powers.
8. With respect to questions related to classic obstructive conduct (such as witness tampering/intimidation, offering bribes or hush money in the form of money or clemency, or physical threats) or conduct that otherwise involves efforts to obstruct, influence, or impede any official proceeding, or attempts to do so, consistent with 18 U.S.C. Section 1512 (c)(2), Special Counsel Mueller should be free to make full oral inquiry of the President during the voluntary interview, subject to objection by counsel. (Unresolved objections shall be presented to the grand jury for resolution by the federal judge supervising the grand jury).
9. In advance of the interview, the parties should agree on the areas of questioning covered by executive privilege and/or deliberative process privilege. (Outstanding disputes shall be presented to the grand jury for resolution by the federal supervisory judge.) No questions should be asked until the judge resolves the issue.
10. As to areas not covered by privilege (for example, all matters under investigation that occurred prior to the 2016 presidential election or before President Trump's inauguration), the President must answer the questions posed or assert his Fifth Amendment right against self-incrimination.
a. If the President were to assert a privilege that the Special Counsel believed was not valid or that could be overcome, or if any other dispute were to arise during the interview about the appropriateness of a question, the parties shall present the disagreement to the grand jury for resolution by the federal supervisory judge. If the supervisory judge were to order that the question be answered, the parties would resume the interview for the purpose of obtaining the answer sought.
b. If the judge were to sustain an objection by counsel to the President because the answer was protected by privilege or otherwise inappropriate, the parties agree to accept the judge's ruling and to suspend questioning on the covered topic.
11. Consistent with legal precedent and DOJ guidelines, President Trump should be provided with assurances that the interview is not a "perjury trap."
a. A "perjury trap" is a legal situation in which a prosecutor calls a witness to testify with the sole intent of catching him or her in a lie, not with the intent to investigate him or her for a previous crime. A perjury trap constitutes a form of entrapment. In other words, it occurs when a prosecutor subpoenas a person to the grand jury not for truly investigative reasons, but simply to try to get the person to commit perjury. In United States v. Chen, the 9th Circuit U.S. Court of Appeals explained what a legitimate investigative purpose is: "When testimony is elicited before a grand jury that is 'attempting to obtain useful information in furtherance of its investigation,' or 'conducting a legitimate investigation into crimes which had in fact taken place within its jurisdiction,'... the perjury trap doctrine is, by definition, inapplicable."
b. Such assurance would not, however, preclude a prosecution for perjury were the President willfully to provide untruthful answers to specific material questions related to investigative matters within the scope of Special Counsel Mueller's mandate, consistent with the Supreme Court decision in Bronston v. United States. (That decision held that answers that are literally true, but which are unresponsive to a prosecutor's question, are to be remedied through the "questioner's acuity" and not by a federal perjury prosecution.)
12. Consistent with DOJ guidelines and practice, President Trump should be provided with an understanding of whether Special Counsel Mueller considers him a witness, subject, or target of the investigation (irrespective of his position as President) as to each area of inquiry. While it is understood that DOJ policy prohibits the indictment of a sitting president, like any citizen, President Trump deserves to know his true status before agreeing to an interview.
a. This also is necessary because (1) a former president can be indicted, and (2) the Special Counsel's final report could be released to Congress as part of an impeachment inquiry.
13. If the President were deemed a target of any aspect of the Special Counsel's investigation (and there is nothing in the public domain that suggests that he is), and he were to refuse to consent to a voluntary interview, Special Counsel Mueller should comply with DOJ subpoena policy. Specifically, United States Attorney's Manual section 9-11.150 (Subpoenaing Targets of the Investigation) would require that if a voluntary appearance cannot be obtained, the target should be subpoenaed only after the Acting Attorney General approves the subpoena. In making his determination, the Acting Attorney General must pay careful attention to the following three requirements:
a. "The importance to the successful conduct of the grand jury's investigation of the testimony or other information sought;
b. Whether the substance of the testimony or other information sought could be provided by other witnesses; and
c. Whether the questions the prosecutor and the grand jurors intend to ask, or the other information sought would be protected by a valid claim of privilege."
14. Irrespective of President Trump's status as a witness, subject, or target, Special Counsel Mueller should provide the President with some basis for the belief that his testimony is important and that the evidence sought cannot be obtained by other means. Although Special Counsel Mueller is not required to do this, he would have to meet this burden in court if he were to subpoena the President and the President were to invoke executive privilege or deliberate process privilege. By providing the basis for presidential questioning now, Special Counsel Mueller would show his good faith and create a written record of his efforts should the President still reject his request for a voluntary interview.
As is always true in a compromise, each of the parties may be uncomfortable with some of these proposed ground rules. Both sides (not to mention the country), however, would have more to lose if the parties were unable to agree to a voluntary interview and Special Counsel Mueller were forced to try to subpoena the President.
The President would lose because of the appearance that he is seeking to evade responding to a properly issued grand jury subpoena, particularly if he is not a target of the investigation and the Special Counsel was only looking for answers to questions relevant to his investigative mandate.
Mueller would lose because the investigation could be protracted for years and it is possible he would not prevail in court.
The country would lose because the investigation would drag on, and we would be thrust into an unneeded constitutional dispute which is guaranteed to widen the partisan divide.
Therefore, in the interests of securing a voluntary interview with the President that will allow the Special Counsel to complete his investigation, that will protect the institution of the presidency, and that will provide the President with the pre-interview assurances he needs, we suggest that the parties consider seriously this framework for reaching a reasonable and workable agreement.
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