It is as if neither Donald Trump nor anyone on his legal team has any idea whatsoever how criminal prosecutions work. I say this not as a function of believing any specific facts with respect to Trump and Russia, but as a direct and obvious result of hearing how the Trump team is “negotiating” with special counsel Robert Mueller. The Wall Street Journal reported on Friday that the president’s legal team is considering a quid pro quo with Mr. Mueller in which Trump would agree to a sit-down interview in exchange for Mueller’s agreeing to a specific deadline for concluding the investigation.
If this isn’t the ultimate combo of arrogance and ignorance, I just don’t know what is. Clearly, the president’s legal team is under enormous pressure to do anything within its power to insulate the president from “the Russia thing.” And in all fairness, that’s the job of any good legal team – to use whatever leverage it has to create a reasonably favorable outcome for its client.
However.
The suggestion that Trump’s cooperating with Mueller’s interview is somehow so valuable that it can be used as a bargaining chip to dictate the terms of a criminal investigation is beyond ludicrous. Let’s walk through it a bit. There are lots of reasons why this exchange isn’t going to happen, but here are a few that rise to the top.
- Trump’s interview isn’t all that valuable.
Reports indicate that Robert Mueller is at the investigatory phase right now, at least with respect to Donald Trump himself. Mueller is evaluating whether the president may have obstructed justice, interfered with the 2016 election, or otherwise colluded inappropriately with Russia; that investigation may or may not bear fruit. Mueller’s job is to gather all available evidence – not to agree to stop looking.
Mueller already has lots of sources of information. Rick Gates has cooperated, and the case against Paul Manafort is stronger than ever. Manafort could very well come forward with damaging information against Trump – and Mueller knows it. No reasonable prosecutor in Mueller’s shoes would agree now to ignore any information that may be revealed. In analyzing the president’s audacity, I discussed the details of this proposed deal with Daniel Goldman, former Assistant U.S. Attorney for the Southern District of New York. Goldman served for as a federal prosecutor for a decade, in which he was both Deputy Chief of the Organized Crime Unit and Senior Trial Counsel in the Securities and Commodities Fraud Unit.
Goldman explained:
“There is no way Mueller would ever agree to place an artificial end date on this investigation other than the statute of limitations, which is a minimum of five years for the crimes he has charged thus far. Mueller is clearly pushing very hard, as evidenced by the number of indictments and the types of evidence included in those indictments, but I cannot imagine that he would ever agree to an artificial end date — it’s just not how criminal investigations work. I would also be surprised if Mueller’s case, to the extent there is one, rises or falls simply based on what Trump might say. There are good reasons why Mueller might want to talk to Trump, but Trump is at the top of the food chain so those reasons are more likely to check the evidence they may have, or to allow Trump an opportunity to respond to the evidence, rather than to develop or cultivate evidence. For Trump to effectively use that as leverage also doesn’t make any sense.”
Imagine any other criminal law context. You’d never see a criminal suspect make a deal with the cops whereby a station-house interview would be exchanged for a promise to drop the entire investigation, especially when the cops already have other witnesses. That’s just not how criminal prosecutions work.
- Trump already said he’d cooperate with an interview.
In law school, we’d call a deal like the one reported a contract that “failed for lack of mutual consideration.” Trump is trying to make an agreement in which he is only promising to do something that he’s already said he would do. That’s like trying to get a car dealership to lower the price after you’ve agreed to buy the car. It doesn’t work in contract law, and it won’t work here.
Of course, we all know that Trump’s promised to cooperate with a Mueller interview doesn’t mean that he actually will cooperate. But Trump’s questionable credibility makes this proposed exchange even worse. Negotiating by saying, “I know I said I would do X, but I was lying,” isn’t a great logic if you’re trying to offer up your interview as valuable grounds for a deal.
- This agreement would make Robert Mueller look bad.
Mueller is an independent counsel. He has an obligation to the American people to find out what happened, as well as a specific mandate to investigate and prosecute within assigned parameters. Cutting his investigation short doesn’t exactly seem like the thing to do. Forging an agreement with the very subject of that investigation to do that would be even more indefensible.
“If Mueller were to arbitrarily conclude the investigation before it comes to its natural finish, one could also make an argument that he is not adequately satisfying his mandate. Mueller really has two roles here. One is to investigate any criminal activity, like any prosecutor,” Goldman said. “The other is more particular to the special counsel, which is to provide the public with a thorough explanation as to whether and what extent, if any, Russia interfered with the 2016 election and whether any crimes arose in connection with that inquiry. Because there really is a public service component to this investigation that goes beyond what is usually involved in a criminal prosecution, this is an additional reason why it would be ill-advised for Mueller to agree to an artificial end date.”
I know Donald Trump fancies himself a master dealmaker. And if Trump University is any example, Trump has often been successful in ripping people off with empty promises. But offering up something of no value to someone who doesn’t need it, but who would be roasted in the media if he accepted it seems like a stretch even for him.
This is an opinion piece. The views expressed in this article are those of just the author.
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