KNOW WHEN TO HOLD 'EM Trump Will Fold if Mueller Calls His Bluff. Giuliani Is the Tell.

[DonViejo]

The president’s lawyer puts more preconditions on an interview that the special counsel will never agree to meet. It’s meant to make the eventual cave-in look magnanimous.

ELIE HONIG
08.10.18 5:23 AM ET

As negotiations continue between Robert Mueller and Rudy Giuliani over a potential sit-down interview with President Donald Trump, Giuliani has gone on a public-relations tour announcing that he has offered to bring the president in to speak with Mueller, under certain (unspecified but certainly wildly self-serving) conditions. According to Giuliani, it is now up to Mueller to accept or reject those proposed conditions. Some have likened the back-and-forth to a chess match, but it’s more like the parties are actually playing two different games: Mueller is playing the legal game while Giuliani is playing a political one.

Anytime a prosecutor wants to speak with a person about a criminal matter, there’s an easy way (an interview) and a hard way (a subpoena). In an interview, the subject agrees to come in to the prosecutor’s office, typically with a lawyer, and answer questions from the prosecutor. There is no grand jury or stenographer, and the witness is not placed under oath. Notwithstanding the relatively informal setting, if a subject lies, he can be prosecuted for making false statements. Martha Stewart famously was charged, convicted, and imprisoned not because she lied under oath in a grand jury but because she lied to a prosecutor in an interview.

At times, the prosecutor will agree to certain narrow limitations, but nothing remotely resembling the extraordinary conditions Giuliani apparently has proposed to Mueller. Giuliani has reportedly requested that Mueller submit written questions and that the president be permitted to respond in writing. I’ve done hundreds of subject interviews as a federal prosecutor, and never once submitted a single written question. That’s because it is essential to the prosecutor to get a direct, in-person read on the subject. There is no substitute for sitting in the same room as a subject and gauging his responses, body language, and demeanor as the questioning progresses. Any written responses to Mueller’s questions would be heavily lawyered, likely to the point of complete uselessness.

Even more conspicuously, Giuliani appears to insist that certain subject-matter areas, including obstruction of justice, must be off-limits to Mueller’s interrogation. Giuliani has complained that any such questions would be a “perjury trap.” Here’s a little free legal advice to Giuliani and the president: The best way to avoid a perjury trap is to not commit perjury. Many apt comparisons have been made by others: Giuliani’s argument is like calling a bank a “bank robbery trap,” or a DUI checkpoint is a “DUI trap.” Indeed, it is unsettling to see the president of the United States take any position other than “Ask me whatever you want and I’ll answer because I want the truth to come out”—never mind a position of “I can’t possibly answer questions from you because that would cause me to commit perjury.”

Mueller understandably might be willing to agree to more or different conditions than usual, given that his subject is the president. However—as Giuliani surely knows based on his own long experience as a federal prosecutor—it is unlikely Mueller will agree to the extraordinary conditions proposed here. That would set the stage for the next step in the showdown. Mueller could walk away and simply carry on his investigation without speaking to Trump. That seems unlikely, given that Mueller has been working to get Trump to the table for at least eight months now. Further, for Mueller to walk away would undermine his standing and authority. The message would be: Put up a hard enough fight and insist on ridiculous enough conditions and I’ll leave you alone. That’s not Mueller’s style.

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https://www.thedailybeast.com/trump-will-fold-if-mueller-calls-his-bluff-giuliani-is-the-tell?ref=home

[Shrike47]

1. Very interesting discussion of Mueller's options and possible actions.

[calimary]

2. Interesting read for sure.

Sounds to me like the trump team is playing a psy-ops game. Reminds me of something I think Dan Rather once said. “If you can’t dazzle them with brilliance, baffle them with bullshit.”

[Fiendish Thingy]

3. I don't believe this is completely accurate

In Meuller’s interviews with others, IIRC, they have been placed under oath, and the interview is recorded by a stenographer. The interviewee is allowed to have Counsel present.

If subpoenaed before a grand jury, same conditions apply, except counsel not allowed to be present.

[Sneederbunk]

4. Mueller should let public know he accepts preconditions.

Any interview of Trump better than none. Call Trump out. Watch Trump spin wheels in reverse so he does not have to appear. Trump would soil himself if he had to meet Mueller under any conditions.

[phylny]

5. Really good article.

I particularly liked this: "The best way to avoid a perjury trap is to not commit perjury."