Legal Analysis

Robert Mueller’s Written Questions for President Trump May Signal the Beginning of the End

President Donald Trump will supposedly provide Robert Mueller with written answers to long-outstanding questions related to the Russia probe sometime soon. An anonymous source cited by Reuters suggests that those answers could come as soon as this week. And this may signal Mueller’s end-game.

That report notes:

The questions from Special Counsel Robert Mueller that Trump is preparing to answer relate only to Moscow’s involvement in the election, and not to whether Trump may have tried to obstruct the Russia investigation…

Answers to Mueller’s questions, however, carry quite a bit of legal jeopardy–at least in theory and in practice. Just ask Michael Flynn, Rick Gates, George Papadopoulos, and Alex Van Der Zwaan. It is possible that others, like Jerome Corsi, Roger Stone and the 45th president’s son Donald Trump Jr., will also have a thing or two to say about that.

Where’s the potential jeopardy for Trump here? In the federal statutes that govern lying to federal law enforcement, Mueller’s so-called “perjury trap” is codified at 18 U.S.C. §1001. That law reads, in relevant part:

[W]hoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully…

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title [and/or] imprisoned…

That’s the statute, but what about the actual content of Trump’s responses? Well, at this point, that’s necessarily a somewhat speculative inquiry. If, however, Trump’s answers contain even an iota of a lie or attempt at subterfuge, expect the special counsel’s office to pounce like an educated Simba on a red-billed hornbill.

Absent the Millennial metaphor: if Trump lies, that’s a felony and impeachment would almost certainly follow. But, again, even going down this road requires enough ropes worth of assumptions to tie down a turnip truck. Let’s take a look at what we can actually divine from what’s presently known.

Former federal prosecutor and Pace Law School Professor Mimi Rocah explained why Mueller is likely to remain content with Trump’s written answers–but only for the Russian interference aspect of his wide-ranging investigation, as the Reuters report suggests.

“It could be that they’re still having a dialogue,” Rocah said in October. “It could be that they have sort of split these [investigations] into two parts. They being the Mueller team–who really has the sort of final say on this. Meaning: ‘On obstruction, we’re still going to ask for you to come in for a live interview, and may take that to a subpoena fight if you refuse. But on collusion, we’re willing to accept these written answers.’”

Expect Trump’s written responses to be heavily lawyered and careful–those answers won’t sound anything like how President Trump actually talks or writes. And, to be clear, he won’t even be pretending to have authored those answers at all. They’ll be provided by way of his legal team.

Rocah also noted why Trump might not have much of an out here. She said:

[On] collusion, they don’t really need Trump to come in for an interview for that. That is going to be a case…based on documents, emails, electronic intercepts, other witnesses, insiders. So much other evidence. You don’t need Trump to explain that to them–or give his false denials, frankly. But he wants the opportunity and I think Mueller wants to give him an opportunity so [Trump] can’t say, ‘Well, I didn’t get to explain myself.’ So, doing it in written form is a way to do that…without dragging it out too much longer [and] without too much consequence.

In other words, Trump may feel vindicated by avoiding Mueller in person for the time being. While at the same time, Mueller is likely to have all he potentially needs on the 45th president from outside sources–if, of course, Mueller is actually even building a case against Trump at all.

“I think this just is a compromise,” Rocah said. “I think if he really needed the interview–the information from Trump on the collusion piece–he would either make him come in for an interview by subpoena and fight over a subpoena if he has to. I think he’s just not wasting his time with that.”

Somewhat oppositely, legal experts Norm Eisen and Asha Rangappa have long argued that going back-and-forth on the “Will he? Won’t he?” decision to maybe allow Trump to possibly provide written answers in lieu of a sit-down interview has effectively worked as an unintentional stalling tactic.

“By dragging out the negotiations, Mueller has allowed breathing room for the rest of his investigation,” Eisen and Rangappa argue in a September op-ed for USA Today. “And he has put that time to good use.”

The two also note that by allowing Trump the “illusion of control,” Mueller has given Trump the opportunity to legally injure himself by making multiple incriminating public statements.

The op-ed continues:

In the meantime, the delay could even help add to Mueller’s obstruction case against the president. With every angry tweet that rails against the Russia probe, Mueller or his own attorney general, Trump adds to Mueller’s gallery of exhibits showing Trump’s “corrupt” intent to quash the Russia investigation.

This isn’t exactly a Clash reference, but the argument here is that Mueller’s opportunistic use of the White House’s own stalling tactics equates to the special counsel giving Trump enough rope to hang himself.

In sum: Mueller may have long ago taken the fact of Trump’s fear and hesitancy to answer those questions in person as a way to drag the investigation out even longer and collect what he needs to really make the president squirm. If the Reuters report is true, that could mean Mueller’s just about wrapping things up with a bow.

[Image via MANDEL NGAN/AFP/Getty Images]

Follow Colin Kalmbacher on Twitter: @colinkalmbacher

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