Media reports that focus on President Trump’s unwillingness to sit down for an interview with special counsel Robert S. Mueller III constitute journalistic malpractice unless they note Trump does not have a choice in the matter. If Mueller wants to, he can get a subpoena from the grand jury to require Trump’s appearance. Trump could try challenging a subpoena in court, but he’s likely to have as much luck with that as his attorneys did trying to keep documents seized from Trump lawyer Michael Cohen away from prosecutors. No federal court is going to buy the argument that the president is too busy to be questioned or does not have material evidence.
The president will then be left with three choices: Refuse to abide by a court order (inviting impeachment), attend but take the Fifth or attend and give testimony. Trump enjoys the same Fifth Amendment protections as other Americans, but as head of the executive branch charged with enforcing laws, such a move would be wholly inconsistent with his oath. Politically, it could be a devastating event that would convince many Americans he is guilty of something (and a coward to boot).
We then come back to the problem of Trump testifying under oath. Wednesday he reminded us he cannot keep his stories straight. Last year he memorably told NBC’s Lester Holt that he fired FBI Director James B. Comey because of the Russia investigation. Now, suggesting his lawyers have finally explained the crime of obstruction of justice to him, Trump tweets, “Slippery James Comey, the worst FBI Director in history, was not fired because of the phony Russia investigation where, by the way, there was NO COLLUSION (except by the Dems)!” In the hands of an experienced prosecutor, the best Trump could hope for is to be revealed as a scatterbrained liar.
Trump has a remarkable penchant for undermining his own defense. In response to the released sketch of the man who allegedly threatened Stormy Daniels, Trump tweeted, “A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!” How did he know the photo is fake? If he is simply talking off the top of his head, Mueller may ask, what other allegations are based on pure fantasy? And how many times, and in front of how many people, did the president declare his intent to shut down the investigation, besmirch the FBI for the purpose of weakening its credibility, direct aides to lie about events or make other incriminating statements? Those are all admissible under the “admissions against interest” exception to the hearsay rule.
Let’s say Mueller asks Trump, “Did you ever tell advisers to dangle pardons in front of witnesses?” “Did you ever tell aides you wanted to stop the Russia investigation in its tracks?” It is highly likely that the true answer to both is “yes,” but it is also an incriminating admission of obstruction of justice. If Trump has said such things and chooses to lie, Mueller will undoubtedly have witnesses who can testify Trump said such things.
In short, Trump cannot avoid an interview if the special counsel wants one. (It’s hard to imagine Mueller wouldn’t.) Once there, it is almost inconceivable that Trump could make it through without lying or incriminating himself (probably both). Each time he lashes out via Twitter, remember the power Mueller has to get his testimony, which is likely to be every bit as disastrous (especially if given to a grand jury without his lawyer) as his lawyers fear. He might be fixated on the Cohen raid for now, but supporters should keep in mind that what he says in a Mueller interview could very well spell the end of his presidency.