Below 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.