Yeomans Work

Beware Investigation Hype

October 13, 2017

Every day that President Trump occupies the Oval Office brings new threats to our democracy.

Whether he is tweeting us toward nuclear war, undermining the freedom of the press, assaulting the environment, abusing civil rights, or nominating yet another irresponsible, far-from-the-mainstream candidate to the federal judiciary, the sense of urgency to remove him from his perch grows. Reasonable people grow impatient, which encourages journalists to hype events that we might all like to see, but are very unlikely to occur. This is not the dreaded fake news; just wishful reporting and analysis.

Two events this week triggered this reflection. First, Carter Page announced that he would not cooperate further with the Senate Intelligence Committee’s investigation and would plead the Fifth Amendment in response to efforts to compel him to do so. Page complicated his posture by demanding an opportunity to appear at a previously scheduled hearing on November 1. That demand is most likely public posturing. If he were subpoenaed to appear, he would surely plead the Fifth.

The Fifth Amendment guarantees Page the right to remain silent to avoid making any statement that might incriminate him. Congress can overcome his assertion by claiming that he previously waived his right by cooperating or does not have a reasonable fear of criminal exposure, or Congress can grant him immunity. The first two options do not appear to be available here. Because a grant of immunity might complicate Robert Mueller’s investigation, that possibility is off the table for now. Unless Page cuts a deal with Mueller, his speaking days before Congressional bodies likely have ended.

The Page experience should play out with other high profile players from the Trump orbit if congress pushes for public testimony. Members of Congress have titillated the public and press with their announced intentions to summon Donald Trump Jr., Paul Manafort, Jared Kushner, and Roger Stone to appear in public. Members know counsel will advise them not to appear without immunity and members know they cannot grant immunity at this stage of Mueller’s investigation.

Committees, of course, can issue subpoenas based on the slim hope witnesses will testify voluntarily. The subpoenas might not produce witnesses, but they would produce political effect. Trump Jr., Manafort, Kushner, and Stone at various times have all expressed their eagerness to cooperate with Congressional investigations and have been willing to submit to closed staff interviews under restricted circumstances. Competent counsel, however, would strongly advise each not to submit to public questioning. The issuance of a committee subpoena, therefore, would provoke a refusal to cooperate and, if the committee pressed, an assertion of the Fifth Amendment. While it is black letter law that such an assertion is not an admission of guilt, the public often reads culpability into it. Imagine Trump Jr. or Kushner taking the Fifth. The prospect of that impact likely will deter Republicans from pressing for subpoenas until Trump’s support has waned sufficiently.

The second event was a report that Trump’s lawyers are adopting a more cooperative attitude toward the investigation in the hope of wrapping it up more quickly. That cooperation includes the production of documents and, most notably, a suggestion that Trump might be available for Mueller to interview. The fairest reading of this new posture is that Trump’s lawyers understand that a public embrace of cooperation softens the appearance of hiding the truth.

Neither the production of documents nor the interview offer has practical significance. Mueller will get the documents, whether cooperatively or otherwise. And he will not accept the interview offer until he is ready, if ever.

Note first that the interview offer was not firm and may never come. In any event, Mueller knows that he will get only one chance, at most, to interview Trump and will not want to question him until the investigation is nearly complete. Mueller will want to know as many details as possible so that he can be certain to cover all of the relevant material with Trump.

There is precedent for special counsel offices interviewing sitting presidents. Patrick Fitzgerald’s interviewed George W. Bush regarding the Valerie Plame Wilson matter and Ken Starr’s interviewed Bill Clinton in a grand jury during the Monica Lewinsky investigation. Clinton was impeached, in part for lying to the grand jury.

Trump has a great deal to lose by interviewing with Mueller. First, whether the interview occurs in a grand jury or simply with Mueller and his team, lying is a crime. Trump may be imagining that he can bluster his way through questioning as he has done many times before in depositions in civil litigation. This would be a very different game. The prosecutors, backed by the FBI, would be meticulously well-prepared. No statement would go unexamined. Given Trump’s pathological relationship with the truth, he would slip into criminal conduct. Moreover, given his inability to stay on message or understand the consequences of what he is saying, the questioning would prove devastating. Remember Trump’s gratuitous confession to Lester Holt that he had fired Comey because of the Russia investigation. The man cannot help himself.

So, a Trump interview might well speed things along, but not in any way the Trump team hopes. Don’t hold your breath.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.