The Danger To Trump Rests In The Sleeper Questions Of The Special Counsel

160px-Official_Portrait_of_President_Donald_Trump_(cropped)440px-Director_Robert_S._Mueller-_IIIBelow is my column in The Hill newspaper on the leaking of the questions outlined by Special Counsel Robert Mueller for an interview with President Donald Trump.  The leak occurred shortly before the resignation of Trump counsel and his replacement with Emmet Flood.  The change removed the lawyer who was most eager to cooperate with Mueller to bring an end to the investigation.  If the leak was designed to poison the well for an interview, the statements of Trump’s counsel certainly indicated a harder line toward Mueller.  Giuliani has stated that Mueller would be given no more than a couple hours on narrow topics — a public statement that could push Mueller toward fulfilling his earlier threat to subpoena Trump.  If Trump fights Mueller on the subpoena, he is likely to lose. He could then find himself pulled into a grand jury room without the benefit of counsel (though he could always reverse himself and agreed on a sit down with the Special Counsel).

Here is the column:

 

The leaking of the dozens of questions for President Trump from special counsel Robert Mueller has launched a Beltway version of a whodunit mystery. It is not clear who would benefit from releasing the questions, either to pressure Trump to sit down or to poison the well for such an interview. The fact is that either could be true. The questions are largely predictable but probative. It could be used to show that there is no ambush to pressure Trump or that the questions are too broad to justify a refusal by Trump. The most devious would be a leak from the Trump team that could be used to cut off an interview on the basis of the leak itself.

Then there are the questions themselves. While most coverage is focusing on the questions dealing with collusion and obstruction questions, those questions, with a couple exceptions, are fairly predictable. Those are not generally the biggest threats for a suspect or a target. The real danger oftens comes from the seemingly innocuous housekeeping questions. One such question is buried in the middle of the list: “When did you become aware of the Trump Tower meeting?” That question could force a dangerous contradiction for Trump if he is the “blocked caller” left unidentified in the recent House Intelligence Committee report.

Before addressing that sleeper question, it is important to put the entire list into perspective. I have previously said that Trump should seriously consider sitting down with Mueller if the special counsel is willing to confine questions to four prior areas negotiated with Trump’s counsel. These questions have not altered that view, as most of these questions come in areas where Trump has extremely strong defenses. In such interviews, you want attacks to come from the front where your armor is strongest. Most of these are frontal attacks that Trump can handle, if he prepares and consults with counsel.

That remains a big “if,” given Trump’s past self-inflicted wounds from off-the-cuff statements and tweets. Worse yet, Trump does not appear to appreciate or at least recognize the criminal allegations raised against him. In yet another ill-advised tweet, Trump said, “It would seem very hard to obstruct justice for a crime that never happened!” Perhaps, but Trump seems intent on showing that it can be done. It is possible for the president to be accused of obstructing justice into an investigation of a crime that did not occur. Obstruction addresses your conduct with regard to the investigation, not the underlying crime.

Trump’s refusal to heed universal legal advice not to discuss the investigation publicly, or to raise it with figures like James Comey, is the very basis for this allegation. In other words, Trump is building a case against himself tweet by tweet. While I continue to question the basis for a criminal charge on this evidence, Trump’s continued failure to recognize the danger of a self-inflicted wound is disconcerting for any lawyer.

It also is true that one question would seem to suggest Mueller has a particularized interest in the conduct of Paul Manafort. The question asks, “What knowledge did Trump have of any outreach by his presidential campaign, including his former campaign chairman Paul Manafort, to Russia about possible assistance to the campaign?” The question is framed as if an attempt by Manafort to get Russian assistance is an established fact. The question clearly contradicts Trump’s tweet that there are “no questions on collusion.”

However, there still remains an absence of a crime raised in that question for Trump and he could likely navigate that line of questions with the assistance of counsel. Moreover, while some questions do deal with Trump business dealings before the election, they notably do not deal with Stormy Daniels and the serious allegations raised by payments made by Trump’s personal lawyer Michael Cohen.

Now to the sleeper question. The recent House Intelligence Committee report was largely well-supported and even included pointed, if somewhat indirect, criticism of Trump’s past statements. However, one element of the minority rebuttal also struck me as equally credible. The Democrats objected that a critical call was never pursued by the majority: Donald Trump Jr.’s phone records show that he received a call from a blocked number between two calls with Emin Agalarov, an Azerbaijani singer and businessman who features greatly in the infamous Trump Tower meeting with Manafort, Jared Kushner and Russians.

Democrats argue that Trump was known to use a blocked number to communicate with his son. The timing of the call strikes me as raising a legitimate question and, absent countervailing facts from the majority, would seem to constitute a glaring omission. It is not clear why the majority did not try to determine the identity of the “blocked caller” with a subpoena. The president and the White House, as well as Trump Jr., have denied that Trump was aware of the meeting.

Mueller likely did not have the same hesitation as the House Intelligence Committee in subpoenaing the identity of the blocked caller. If Trump is the blocked caller, he would have to assume that Mueller already knows the answer to the sleeper question. He would have to admit to the call and either change his position or claim, implausibly, that he and Trump Jr. discussed unrelated subjects.

This is why the greatest danger for Trump lurks not in the sexy questions but in the sleeper questions. This could be a motivation for the leaking of the questions by someone who is unconvinced that Trump could navigate all of these questions without tripping a wire. In the end, “Whodunit?” is less important than “What is to be done?” The president can sit down or bunker down. The problem, however, with a bunker approach is that Mueller does not need much of an opening to pursue Trump. All the special counsel needs is enough to slip a subpoena through.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

233 thoughts on “The Danger To Trump Rests In The Sleeper Questions Of The Special Counsel”

  1. And now for some REAL news that you won’t hear about in the lamestream media. . .

    (NEWSER) May 4, 2018 – The indictment of former Trump campaign chairman Paul Manafort took center stage in federal court on Friday and things got a bit testy. US District Court Judge T.S. Ellis tartly asked Robert Mueller’s prosecution team to explain how their indictment of Manafort on financial charges relates to Mueller’s investigation into alleged Russian meddling in the election. “I don’t see what relation this indictment has with what the special counsel is authorized to investigate,” Ellis, a 77-year-old Reagan appointee, declared at the hearing, reports Politico. “You don’t really care about Mr. Manafort’s bank fraud. … What you really care about is what information Mr. Manafort could give you that would reflect on Mr. Trump or lead to his prosecution or impeachment.”

    Ellis suggested that the case was meant to pressure Trump’s former campaign manager to “sing” and squeeze information that could be used against the president. In response, Justice Department lawyer Michael Dreeben asserted that Manafort’s alleged crimes were relevant to Trump’s campaign ties to Russia: “In trying to understand the actions of Mr. Manafort in Ukraine and the association he had with Russian individuals and the depths of those financial relationships, we had to follow the money where it led,” he told the court, reports the Washington Post. Manafort is facing criminal charges in Virginia of tax and bank fraud, and he’s also facing criminal charges in Washington, DC, for failing to register as a foreign agent for Ukraine and conspiring to launder money, per Reuters. The judge held off on ruling on Manafort’s request to toss the case.

  2. I am so tired of reading about this stuff. So the guy owns a bunch of gambling casinos, hotels and then decides to do a reality show. No idea of all the people that are going to go after him on all of it. Have we heard from a hotel maid that was abused? No one in the casinos. We have all in front people that want to ride this wave and make a movie or write a book. Every time and predictable. Retirement if the suit does not work.
    Now the guy is far from perfect but does reflect an idea of a ” not perfect but might be like you and me ” manager and you may have to listen to the company speeches a bit. He made it and has model gals around but give him a break. We have no idea who we would have around over time or that much money in generations as to friends. Get me on talking to porn gals as the Sheen thing has from the get go caused problems. I do not think there was something there and what is being played is a set up again. Do you really think with a wife that hot even pregnant would go after that thing?
    Of course this will be an issue on it’s face and that is fine. It is better to have this to an extent than any multi-generation lifer political family with a trust forever telling you what to do. This has been going on for years and the pain is being right there for main street.
    I do think that the tabloid people will keep on it as long as people respond on social media. It is an experiment to see how much money can be spent to make a political sway. Being pawned is not nice and the pawns should be able to see it.

    1. Then stop reading about this ‘stuff.’ No one is forcing you.

      Though given your excellent post, especially this passage:

      “He made it and has model gals around but give him a break. We have no idea who we would have around over time or that much money in generations as to friends”

      It seems you stopped reading long ago.

      1. @FishWings May 4, 2018 at 8:49 AM
        “That cartoon should go in a book on great propaganda.”

        Really? How about in a book on subtle-as-a-Mack-truck propaganda? 🙂

    1. Don’t get too excited.

      Cavuto is covering his furor that Trump is fixing Main Street at the expense of Wall Street.

      I can tell by your comments, ChuckG, you are watching cable news and not doing any work on your own to deep dive on topics you comment on.

      With the absence of facts, you’re about to be as blindsided as you were on election night 2016………

  3. “The professor doth profess too much, methinks.”
    Hamlet Act 3 Scene 2
    Queen Gertrude, a.k.a. the professor

    I find the professor’s professing to the insincere overacting of Messrs. Mueller, et al. to prove the guilt of Mr. Trump, candidate Trump and/or President Trump to the commission of a non-existent crime to be fatuous.

    Unless, of course, one sincerely, credibly and factually considers the conduct of Special Counsel for the Department of Justice is to create a crime, which does not exist, or to have the different incarnations of Donald J. Trump to create a crime which did not exist before talking ( or responding) to the Special Counsel.

    Special Counsel Mueller is, simply a cop, who also can and will become a prosecutor.

    Donald J. Trump, the evidence clearly supports, does not seem to possess the character as a person, candidate or President who is amenable to client preparation
    ( or even “coaching,” which is, of course, unethical! ).

    As I said before and do not want to say again, “Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstance.”  Watts v. Indiana  338 U.S. 49, 59 (1949).

    Any advice to the contrary, may make for the professing of a professor, but not the advise of an experienced and astute criminal defense attorney.

    In other words, a criminal defense attorney who knows, understands and intends to protect his client, even if client does not know, understand and appreciate his need to be protected.

    dennis hanna

  4. The leak may indicate Mueller’s team is weaponized against conservatives.

    I have never understood why Mueller hasn’t subpoenaed Hillary Clinton. After all, she and the DNC actually did pay Russian spies for unverified dirt on her political opponent, and then that poison tree was the basis of the investigation against Trump.

    Until they are pulled in and treated equally, I will view this as the Left’s abuse of power to deny the American people the results of the election.

    1. You’re still recycling this old BS about the dossier?? Some of it is verified and the investigation started earlier with the Papdopolous information. Catch up.

    2. I have never understood why Mueller hasn’t subpoenaed Hillary Clinton.

      Karen,
      Because this is not about justice but rather lawfare. What’s worse, this is not only lawfare taught once lawyers pass the bar; this is lawfare taught in our nation’s law schools.

      The lack of balance in the legal academy is a serious problem, and is getting worse. Few outside the academy pay attention, compounding the problem. (Walter Olson’s excellent 2011 book, Schools for Misrule, is a notable exception.) The ABA has too much control over accreditation standards that have little or nothing to do with maintaining the quality of legal education, and everything to do with promoting a leftist ideological agenda.

      http://www.libertylawsite.org/2018/05/02/who-runs-the-legal-academy/

    3. I’ll alert the media regarding your “view.”

      This is to “ya, but my Ill-informed view is really, really important to me” karen

  5. the whole charade is over. I tell you he’s going to refuse the meeting, that’s it. Stupid time over. Meuller will have to ante up.

    1. Then Mueller will call him before the Grand Jury where he will have the choice of answering or invoking his 5th Amendment rights. Terrible optics, wrongly or not. And what if Trump is granted immunity?

  6. I wonder how the Separation of Powers would permit a POTUS to be compelled to testify in a judicial proceeding? (as opposed to producing documents/tapes as the Court ruled in 1974). Wouldn’t that elevate the un-elected judiciary over and above the other two branches of government? Given the almost nonexistent systematic restraints on judges (elected for life and generally immune from suit) how would we ever put the pieces of Humpty Dumpty back together again if the judicial branch served as a super-legislature and super executive all rolled into one with the unappealable power to punish either branch for contempt of its orders.

    I vote we go slow here. Real slow.

    1. The power resides with the “Sovereign,” the People.

      Congress is the representative of the “Sovereign,” the People.

      Congress has the power of impeachment.

      Multiple civil officers of the United States have committed crimes of high office and misdemeanors.

      “Extreme remedies are very appropriate for extreme diseases.”

      – Hippocrates

    2. Moreover, this is a SPECIAL counsel under the executive branch, rather than INDEPENDENT counsels under legislative.

      How can POTUS’s underlings subpoena and compel their boss?

    3. See how that worked out for Bill Clinton in the Paula Jones case. And that was a civil case, not a criminal case.

        1. And so shall it be with this case. Trump shall voluntarily answer Mueller’s questions or answer them (or invoke the 5th). after a subpoena.

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