Yeomans Work

Don’t Need No Stinking Oath

January 26, 2018

Once again, the prospect that Robert Mueller will soon interview President Trump excited Russia investigation watchers this week. Sources suggested that the Mueller and Trump camps were in negotiations that could lead to an interview within two or three weeks.

Trump, on his way out the door to cavort with the wealthy and self-congratulatory in snowy Davos, confirmed the timeline and blurted out that he was eager to answer Mueller’s questions. He responded in the affirmative when a reporter asked if he would do so under oath. This brief exchange drove home how little we and the press understand about what is actually happening. The breaking revelation that Trump – in June! — ordered White House Counsel Don McGahn to tell the Justice Department to fire Mueller confirms that we still have much to learn.

Regarding the interview, there is the matter of timing. The suggestion that the interview is imminent comes from Trump’s team, which has issued a series of predictions that the investigation would soon conclude. They initially announced their expectation that it would be wrapped up by Thanksgiving, then the end of the year. The passage of each date has been marked by new revelations that appear to expand, rather than wind down the investigation. It seems quite possible that the announced imminence of the interview is another effort to please the boss by making it appear the end is near.

There is support for the imminent interview theory. Mueller conducted a flurry of interviews with White House staffers over the past three months. We learned this week that Mueller recently interviewed Attorney General Sessions for several hours, which means that he has interviewed almost all of the key players involved in the firing of Jim Comey. The Comey firing is central to the investigation into obstruction of justice. Assuming Mueller is working his way up the ladder, Sessions would likely be a last step before Trump.

But, a couple of factors give pause. There are gaps. We have not heard, for example, that Mueller has interviewed Jared Kushner about his role in Comey’s firing, nor does it seem likely that Mueller has questioned Donald Trump Jr. on the matter. Meanwhile, Senate Democrats have pressed for release of the transcript of Trump Jr.’s interview with the Senate Judiciary Committee. Committee Chair Grassley has agreed to the release, but the process may take a while. The Democrats’ eagerness suggests that members think Trump Jr. has placed himself or others in jeopardy. Mueller surely will want to see the transcript before making final decisions.

Moreover, Mueller is unlikely to get multiple interviews with Trump. Since investigations generally work from the bottom to the top and Trump sits at the top of this pyramid, Mueller likely will want to have all pieces of the investigation virtually completed before confronting Trump. That will include not only obstruction of justice, but also inquiry into Trump campaign connections with Russia, including financial connections that may explain cooperation with Russia. We know less about Mueller’s progress on the “collusion” side of the investigation, but it would be surprising if he were near the end.

One predictor of the progress of the investigation has been the level of activity by Trump’s most rabid supporters. Like animals in nature, they seem to have advance notice of impending disaster – perhaps aided by communication from the White House – and ramp up their irresponsible attempts to delegitimize the FBI and Justice Department. Trump’s House supporters and their Fox News megaphone have been in high gear in recent days, which may portend more than negotiations over a Trump interview.

Despite Trump’s accommodating statements, there is still no guarantee that Trump will submit to a voluntary interview. Putting political considerations aside, his lawyers would almost certainly advise against it. The possibility that Trump will make false statements or otherwise incriminate himself is too great. But political considerations dictate that Trump appear fearless and cooperative. Refusal to submit to questioning will almost certainly result in a grand jury subpoena. Before the grand jury, Trump will have to answer questions or assert his Fifth Amendment privilege to remain silent. He and his lawyers may decide to head off that possibility by agreeing to a voluntary interview with negotiated limits.

The reporter’s shouted question about whether Trump would agree to answer questions under oath, and Trump’s reply that he certainly would, made for good theater but have little practical significance. Trump will commit a felony if he lies during questioning by Mueller, members of Mueller’s staff or FBI agents, regardless whether he has taken an oath to tell the truth. 18 U.S.C. 1001 creates criminal liability for anyone who “knowingly and willfully . . . makes any materially false, fictitious, or fraudulent statement or representation.” The prohibition applies to matters within the jurisdiction of all three branches of government and it applies when no oath has been taken. The administration of an oath may bring solemnity to a proceeding and may allow a prosecution for perjury pursuant to 18 U.S.C. 1621, but it does not significantly enhance a witness’s criminal exposure.

Prosecutions for making false statements and for perjury are difficult because prosecutors must prove that the speaker knew the statement was not true and that the statement was actually false, rather than simply unresponsive or evasive. Prosecutions pursuant to 18 U.S.C. 1001 for lying to investigators, however, have brought down high profile defendants from Martha Stewart to Scooter Libby to Michael Flynn.

When Trump faces Mueller, therefore, he will know that lying will violate the law. Given Trump’s demonstrated propensity to lie, he will be in dangerous territory. The most difficult task prosecutors may face is establishing that Trump knew he was lying. It is unclear whether he is incapable of distinguishing truth from falsehood or simply doesn’t care. Either one should disqualify him from being the nation’s chief executive.

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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.