For months now, pundits have propagated the myth that special counsel Robert MuellerRobert (Bob) MuellerSenate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel MORE and his team must interview President TrumpDonald TrumpMcCabe wins back full FBI pension after being fired under Trump Biden's Supreme Court reform study panel notes 'considerable' risks to court expansion Bennie Thompson not ruling out subpoenaing Trump MORE to complete their investigation. This misconception is based on the belief that Mueller requires and is entitled to an interview to determine the president’s knowledge and intent. Mueller is not so entitled, and the president should not do it.
Government prosecutors conduct white-collar investigations every day. Usually, prosecutors complete their investigations without the benefit of interviewing the person under investigation.
Like all white-collar investigations, Mueller’s investigation requires an analysis of the president’s knowledge and intent. The allegations involving obstruction and foreign meddling in our election are no exception.
Knowledge and intent determinations are necessary in most white-collar investigations. Typically, prosecutors determine whether they can prove criminal intent based on the facts uncovered in their investigation, including relevant witness testimony and documentary evidence such as emails.
The prevailing view, based on legal opinions from the Justice Department’s Office of Legal Counsel, is that Mueller cannot seek an indictment of the president from the grand jury and, thus, his recourse is to write a report. That report can address the president’s knowledge and intent based on the evidence, without the benefit of a voluntary interview of the president.
While it is “typical” for a prosecutor to conclude an investigation without interviewing the person under investigation, this investigation is anything but typical. However, when it comes to whether or not the president should agree to a voluntary interview, the usual rules apply. The president’s legal team is wise in recommending that he not agree to an interview; all it could do is help Mueller’s team advance an arguable case against the president.
Over the course of my career, I have represented many CEOs and public officials in white-collar investigations. On the rare occasion when I allowed a client to give a voluntary statement to a prosecutor, I was convinced the prosecutor had an open mind. Here, the president and his legal team have apparently concluded, rightly or wrongly, that Mueller’s probe is a “witch-hunt” conducted by partisans who have pre-determined the president’s guilt. Given the president’s view about the unfair mindset of Mueller’s team, submitting to a voluntary interview would be tantamount to walking into the lion’s den.
Without knowing what information Mueller has, it would be easy to fall into a “perjury trap.” Even denying allegations could constitute what prosecutors frequently call “false exculpatory statements,” which the Mueller team might characterize as “consciousness of guilt.” An interview is a lose-lose proposition for the president.
Pundits also point out that if the president declines a voluntary interview, Mueller could subpoena him. The threat of a subpoena is a paper tiger. Issuing a subpoena could subject the Department of Justice and Mueller to a barrage of criticism; the president’s legal team has various constitutional arguments to challenge a subpoena, which would cause the investigation to be tied up in litigation for a long time. It is doubtful Mueller wants to keep his office open for a prolonged period. It is more likely that he will write a report and not pull the trigger on a subpoena.
In the unlikely event Mueller subpoenas the president and prevails in litigation to enforce the subpoena, the president might refuse to appear before a grand jury. If that occurred, Mueller’s only remedy would be to seek to hold the president in contempt. Imagine two deputy marshals knocking on the door of the White House, telling the Secret Service they are there to put the president in handcuffs and arrest him. It is beyond implausible.
Those who oppose the appointment of special counsels argue that special counsels frequently believe they are on a mission to “get” the person they are investigating. I do not make this accusation against Mueller’s team. It is important to remember a special counsel’s mission is fulfilled successfully by a thorough investigation, regardless of whether the evidence incriminates or clears the person being investigated. The American people will have confidence in our institutions if Mueller’s report, completed without an interview of the president, follows the evidence and reaches a fair conclusion.
Jon A. Sale was an assistant special prosecutor to Archibald Cox and Leon Jaworski during the Watergate investigation. He served as assistant U.S. Attorney for the Southern District of New York and the District of Connecticut, and as chief assistant U.S. Attorney for the Southern District of Florida. He is now of counsel and one of the co-chairs of the national white collar and government investigations practice group in the Miami office of Nelson Mullins Broad and Cassel.