President Donald Trump’s associates are warning him that a word he rarely uses – compromise – is the only acceptable outcome from a high-stakes game of chicken with special counsel Robert Mueller over the terms of a potential in-person interview.
Trump’s lawyers have signaled they don’t want the president to sit down for unrestricted questions from Mueller. But a complete refusal to cooperate with the special counsel’s Russia investigation could trigger a Supreme Court battle that many legal experts and Trump allies believe the president would lose, at a huge political cost.
“The president could assert his Fifth Amendment privilege and tell Mueller to shove it,” said Roger Stone, one of Trump’s earliest — and most combative — political advisers. But even Stone conceded that would be a risky move: “I think there can be a reasonable compromise. I recognize the political and legal danger of just stiffing the guy,” he said.
Stone and at least two other people who regularly speak to Trump — Newsmax publisher Chris Ruddy and former House Speaker Newt Gingrich — are instead advising that the president offer Mueller a compromise of responding to questions in writing only. That’s the same deal President Ronald Reagan struck during the Iran-Contra investigation in 1987, multiple Trump allies noted in interviews.
Trump’s legal team is also interested in the possibility of a partial written exchange with Mueller, according to a source familiar with the White House’s strategy.
Whether Mueller would accept such an outcome is unclear. But it’s one potential middle position between Trump’s public pledge to cooperate with the special counsel and fear among his lawyers and advisers that speaking to Mueller under oath could put him in serious legal jeopardy, particularly given his long track record of false and exaggerated claims.
The New York Times reported on Monday that Trump’s personal lawyers had advised the president to refuse Mueller’s request for a wide-ranging interview.
But while Trump’s top personal lawyer, John Dowd, favors a more defiant approach, White House lawyer Ty Cobb takes a more accommodating position. One source familiar with the White House’s strategy says the two men agree on trying to have Trump answer as many of Mueller’s questions in writing as possible.
While specific details of the negotiations are not known, the jockeying between President Bill Clinton and independent counsel Kenneth Starr — who wound up subpoenaing Clinton after the president’s lawyers sought to deny him an interview — may offer clues.
Beginning in January 1998, Starr, who was investigating multiple allegations of Clinton wrongdoing, extended the first of six invitations for the president to appear before the grand jury.
But while Clinton repeatedly insisted in public that he supported total cooperation with the Starr probe, his attorneys kept resisting in private.
In a hand-delivered letter to Starr’s office on February 13, 1998, Clinton personal attorney David Kendall rejected Starr’s initial series of requests for a grand jury appearance, calling it “impossible” because of the “dangerously volatile” situation in Iraq, as well as the president’s “heavy travel schedule.”
Starr’s office didn’t budge. “With all respect,” independent counsel deputy Robert Bittman countered two weeks later, the president had “found time to play golf, attend basketball games and political fundraisers and enjoy a ski vacation.”
By mid-summer, Starr’s patience ran out. On July 17, a grand jury issued the first subpoena ever to a sitting president. The two sides then met in court and negotiated the terms for an August 1998 grand jury interview with Clinton, who testified to the courthouse from the White House’s Map Room via closed circuit TV.
It was in that interview that Clinton acknowledged an affair with White House intern Monica Lewinsky and famously argued with a Starr deputy over the definition of “sexual relations” and the meaning of the word “is.” Those answers became central to Clinton’s impeachment by the Republican-led House.
“I would not be surprised if such gamesmanship was being played out now behind the scenes,” said Jay Apperson, who served as Starr’s deputy independent counsel.
Trump’s legal team has long said that talks with Mueller are in an early stage and nothing has been formalized.
The president’s lawyers have also been studying for months the legal history surrounding past presidential interviews. Every president since Watergate, with the exception of Barack Obama, has been directly involved in a federal criminal investigation while in office. All but George H.W. Bush agreed to submit to questioning.
Trump allies point to the example of Reagan, who took several weeks in 1987 to answer written questions from the Iran-Contra investigator, Lawrence Walsh. White House press secretary Marlin Fitzwater told reporters at the time the president’s answers had “the legal force” of testimony given under oath. His responses were not publicly released while he was president.
Reagan submitted to two more rounds of questions after he was out of office, during his former national security adviser John Poindexter’s 1990 criminal trial and again for Walsh’s team in 1992.
Several Trump allies have recently issued public warnings about the serious legal risk he would face in live questioning from Mueller and the seasoned prosecutors on his team.
“I actually don’t want him to testify, because as a lawyer I don’t want him caught in a gotcha moment where somebody accuses him of lying where he may not remember something or something like that,” Anthony Scaramucci, the former Trump White House communications director, said Sunday on ABC’s This Week with George Stephanopoulos.
Sen. Lindsey Graham, an occasional Trump critic and ally who served in the House as a Clinton impeachment manager, said he agreed with Trump attorneys who don’t want him to sit for an interview with Mueller. “If I were his lawyer, that’s what I’d tell him,” the South Carolina Republican told POLITICO. “I just think, you know, if I could avoid my client having to answer a bunch of questions that you may not be prepared to answer, I would.”
“It only takes a couple of slip-ups for them to say to his lawyers, ‘We caught your client in a lie. Do you want us to present this to a grand jury and see if they indict him?’ That would be catastrophic for the president. Don’t give them that opportunity,” Fox News judicial analyst Andrew Napolitano said in a Tuesday appearance on the network.
“If I’m a federal prosecutor and you lie to me, even though you think you’re telling the truth, ask Martha Stewart, there’s a problem,” Napolitano added. “That’s the problem that the president faces. A misstatement could be construed as a lie to a federal official in a formal investigation and that’s a felony.”
That’s why many Trump allies are urging the president to follow Reagan’s example and only communicate with Mueller in writing, if possible.
“While I think the president would handle the interview fine, I think it’s judicious to take these things in steps,” said Ruddy, a longtime Trump friend and member of his Palm Beach Mar-a-Lago club. If written questions don’t satisfy Mueller, Ruddy said Trump’s attorneys could then negotiate for an interview.
Appearing on the Fox News morning show Fox & Friends last month, Gingrich urged Trump and his lawyers to tell Mueller that written answers “are the only thing you’re going to get.” Trump is known to watch the show regularly.
“I think the idea of putting Trump in a room with five or six hardened, very very clever lawyers, all of whom are trying to trap him would be a very, very bad idea,” Gingrich said.
Some legal experts say the special counsel might prefer not to interview Trump at all rather than do so in writing or under severe restrictions. Some Trump lawyers reportedly want to put certain subjects off-limits to Mueller’s questioning, including actions that can be construed as part of the president’s duties — possibly including his decision to fire FBI director James Comey.
“It is extremely legally risky for the president, unless he can so essentially restrict the purview of the interview, that it becomes a useless interview to Mueller,” said Samuel Buell, a Duke University law school professor and former federal prosecutor.
”If I were Mueller, I’d not agree to that kind of interview,” Buell added. “You’re not going to get anything out of it. The president walks away and gets to say, ‘See, I cooperated and they don’t have anything on me.”
Trump, if faced with a subpoena, could also force a protracted fight with Mueller that goes to the Supreme Court.
The sure-to-be-spectacular legal drama could come at a high cost. It would likely drag out Mueller’s investigation through the midterm elections and possibly beyond, disrupting Trump’s own message while waging a 2020 reelection campaign.
“I think he could burn up a couple of years there,” said a white-collar defense attorney who has worked on high-profile investigations.
Many legal experts also doubt Trump can prevail, given a 1974 court ruling which found that President Richard Nixon had to comply with the request of the Watergate special prosecutor that he turn over Oval Office recordings of conversations with his aides.
The president could also seek to dodge Mueller’s questions by invoking his Fifth Amendment rights, which protects individuals from being forced to testify against themselves in criminal cases. But that move would bring its own political challenges.
Pleading the Fifth Amendment can create the appearance that someone has something to hide — a point Trump made as a presidential candidate when he ridiculed staffers for Hillary Clinton who invoked it to avoid questions about their knowledge of Clinton’s use of a private email server.
“If you’re innocent, why are you taking the Fifth?” Trump said during a rally in Iowa in September 2015.
Trump himself has asserted the Fifth Amendment before, during 1990 divorce proceedings with his then-wife, Ivana.
“It’d be politically disastrous if he took the Fifth,” said a source familiar with the Trump legal defense. “That would almost certainly open the door to impeachment.”
A POLITICO-Morning Consult poll conducted last week found that 60 percent of registered voters supported Trump sitting down to answer questions from the special counsel.
Democrats overwhelmingly said Mueller should interview Trump, as did 61 percent of independents. But just 36 percent of Republicans agreed.
Trump’s strategy to date for dealing directly with the special counsel has bounced between cooperation and resistance. The president told reporters last spring he was “100 percent” ready to testify about alleged Russian ties to his campaign. In mid-October, POLITICO reported that Trump’s lawyers were open to letting Mueller interview Trump.
Cobb has been leading the push for the president’s cooperation, telling CBS in a mid-January podcast that negotiations with Mueller’s team began in earnest in December.
“It’s always been anticipated that it would occur,” Cobb said. “I would hope that a fair-minded office of special counsel would approach it in a dutiful way consistent with precedent and it wouldn’t just be a perjury trap.”
A week later, Trump told reporters at the White House that his lawyers had told him he could meet with Mueller in about two to three weeks. “I’m looking forward to it, actually,” the president said.
But several hours later, Dowd poured cold water on the notion. “I will make the decision on whether the president talks to the special counsel,” he said. “I have not made any decision yet.”