The Memo: Will Mueller play hardball with Trump?

Special counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE wants to interview President TrumpDonald John TrumpIran claims it rejected Trump meeting requests 8 times ESPY host jokes Putin was as happy after Trump summit as Ovechkin winning Stanley Cup Russian ambassador: Trump made ‘verbal agreements’ with Putin MORE — but how far is he willing to go to get the president's testimony? 

Some legal experts believe Mueller might have gathered sufficient evidence for indictments even without a Trump interview. They say Mueller could be reluctant to get bogged down in the months-long legal battle that would ensue were the president to resist a subpoena.

“Originally my thought was, ‘Without question, Mueller will subpoena him given how he has handled this case.’  I’m not so completely sure of that anymore. I think Mueller could say, ‘We’ve tried to accommodate them, we’re moving ahead,’ ” said Solomon Wisenberg, a Washington attorney who served as independent counsel Kenneth Starr’s deputy during investigations into former President Clinton.

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Wisenberg still said a subpoena was more likely than not, however. And he noted that negotiations between the Mueller team and Trump’s lawyers could yet reach an agreement on the conditions for an interview. 

Katy Harriger, a Wake Forest professor and the author of several books about special prosecutors and constitutional law, also raised the possibility that Mueller might already have gathered enough ammunition for prosecutions. 

“What we don’t know is what they have. For the people they’ve indicted so far, they clearly didn’t need the president’s testimony,” she said.

By contrast, Harriger noted, “If this subpoena is issued, and if the president refuses to comply, you likely have a court battle which would raise the stakes and put everything on hold while it plays out.”

The question of whether Trump will consent to an interview is still wide open. The president and his allies have struck different stances on the question, often within minutes.

Speaking to CNN’s “New Day” on Friday, Trump lawyer Rudy Giuliani said that Mueller’s team had agreed to narrow the number of topics of a potential interview from five to two. But Giuliani, the former mayor of New York City, also contended that one of Mueller’s chief aims was “trapping people into perjury.”

Trump said earlier this month, “I would love to speak. … Nobody wants to speak more than me,” before insisting that he would only do so if he were treated “fairly” — and condemning the Mueller probe as “a pure witch hunt.” 

In a Thursday interview with The Hill, Giuliani contended that it was not the president but “the investigation and the investigators" who need to be put under scrutiny. Yet, he insisted, he and his colleagues “still have an open mind” about a Trump interview. 

In the wider Trump orbit, there are many people who are skeptical that Trump will ever consent to an interview. Outside supporters often lash Mueller and other figures associated with the investigation.

“Under no circumstance should the president agree to an interview with Mueller,” said Joseph diGenova, who served as U.S. attorney for the District of Columbia during former President Reagan’s administration. 

DiGenova, who at one point was slated to join the president’s legal team and remains vigorously supportive of him, added, “He is under no obligation to do so and, given the indications of bad faith by the Mueller group … it would be a mistake to believe a thing they would offer by way of assurances.”

To Trump skeptics, of course, the assaults on Mueller are unjustified. They see such attacks as a method of muddying the waters around the probe so as to make it easier to refuse an interview — and to push back on any adverse findings for Trump that might eventually emerge. 

Some Department of Justice veterans note that the offer of an interview with a defendant is something an innocent party can be eager to accept — especially if they think they can show they had no intent to obstruct justice, for example.

Obstruction of justice is one of the potential crimes for which Trump is being investigated, according to multiple reports.

“In some ways, it is a courtesy you extend to a defendant: the opportunity to talk to prosecutors, especially on a crime so heavily dependent upon intent,” said Joyce White Vance, who served as the U.S. attorney for the Northern District of Alabama during former President Obama’s administration. 

“Although this has been portrayed as a perjury trap or aggressive prosecution tactics, for an innocent person this is an opportunity to short-circuit this. But that is not the way the Trump camp has viewed this,” Vance added.

Other legal figures, including some critical of Trump, argue that it is still likely Mueller would seek testimony from the president, even if he has to issue a subpoena to get it.

“You would always want, if you’re able to, to get an interview, because it is difficult to prove crimes beyond a reasonable doubt — much more difficult than most laypeople realize” said Renato Mariotti, a former federal prosecutor. 

Mariotti asserted that Mueller would only be causing himself trouble if he did not interview Trump given the inherent seriousness of “looking at potential crimes committed by the president.”

Vance argued, however, that on this issue as in so much else, Trump is a case apart.

She said that Trump’s tweets and public statements in media interviews have already given Mueller “an abundant body of information.” 

The same was true, she added, of the public discussion of an interview among Trump and his lawyers.

“In many ways, Mueller benefits from this very public conversation that the president and his lawyers are having,” she said. “It’s stunning. Very few defense lawyers would have this running conversation that prosecutors can observe every nuance of.”

The Memo is a reported column by Niall Stanage, primarily focused on Donald Trump’s presidency.