Delaying, limiting or avoiding an interview with special counsel

© Provided by The Wall Street Journal.

President Donald Trump’s legal team has been studying a 1990s federal court ruling that could be the basis for delaying, limiting or avoiding an interview with special counsel Robert Mueller, who is heading an investigation into Russian interference in the 2016 election, according to people familiar the matter.
Mr. Trump this week told reporters he was “looking forward” to speaking to the special counsel’s office, which has already interviewed more than 20 members of his White House staff.
“I would love to do it, and I would like to do it as soon as possible,” the president said.
Yet he also said that any decision about testifying before prosecutors looking into possible obstruction of justice on his part would be “subject to my lawyers,” whose interest is to spare Mr. Trump any legal jeopardy.
Mr. Mueller’s investigation is looking into whether the Trump campaign colluded with Moscow during the campaign and whether the president obstructed justice when he fired former FBI Director James Comey, who initiated the probe.
Mr. Trump has denied both accusations, and Russia has said it didn’t meddle in the campaign.
Granting Mr. Mueller an interview poses legal risks that some people close to the president find unacceptable. The 1997 case potentially gives Mr. Trump some leverage.
In that case, a federal appeals court ruled that presidents and their closest advisers enjoy protections against having to disclose information about their decision-making process or official actions.
The court ruled that prosecutors hoping to overcome arguments of executive and presidential privilege must show that such information contains “important evidence” that isn’t available elsewhere.
A central piece of Mr. Mueller’s inquiry is Mr. Trump’s decision in May to fire Mr. Comey.
The Mueller team is examining whether the action amounted to obstruction of justice, a finding that could touch off impeachment proceedings.
Legal scholars said that Mr. Trump’s lawyers could invoke the 1997 case to obtain more favorable terms of any voluntary interview Mr. Trump gives, because a court fight over an interview or grand jury testimony could take months to resolve.
The president has taken shifting positions on the investigation. He has denounced it as a “witch hunt” and a “hoax,” but also said he believes Mr. Mueller will treat him fairly.
In June, Mr. Trump privately wanted to fire Mr. Mueller, though he backed off when his top White House lawyer, Don McGahn, raised objections, one person familiar with the matter said.
Asked about that episode, first reported by the New York Times, Mr. Trump said: “Fake news. Fake news,” as he arrived in the World Economic Forum on Friday morning in Davos, Switzerland.
Others said that Mr. Trump never seriously considered dismissing Mr. Mueller. Though Mr. Trump privately raised concerns about what he saw as conflicts of interest on Mr. Mueller’s part, one former White House aide said he recognized that ousting the special prosecutor would backfire politically.
Mr. Trump has said that Mr. Mueller’s conflicts include a friendship with Mr. Comey and Mr. Mueller’s interest in succeeding him as Federal Bureau of Investigation director, according to people familiar with the matter.
“There was never a decision to even challenge Mueller on conflicts (of interest), let alone an order to fire him,” one person familiar with the team’s legal thinking said. “Had the president decided to challenge Mueller on conflicts, there were unquestionable mechanisms to raise that issue with the Department of Justice — and even that was not pursued.”
If the president were to turn down an interview request by Mr. Mueller, the special counsel could seek to subpoena his testimony before a grand jury.
Mr. Trump could then seek to fight the subpoena, citing, in part, the 1997 ruling by the U.S. Court of Appeals of the D.C. Circuit in the case involving an independent counsel subpoenaing White House records about then-Agriculture Secretary Michael Espy.
Mr. Espy was indicted on charges of receiving improper gifts but acquitted at trial.
If Mr. Trump were determined not to speak to Mr. Mueller, he could also seek to assert his Fifth Amendment right against self-incrimination, legal experts said.
“This is really the only argument they can make outside of the Fifth,” said Todd Presnell, an attorney who has researched and written extensively on presidential privilege. “The Fifth Amendment would be a public-relations nightmare.”
Mr. Presnell noted that the Espy ruling would apply only to actions Mr. Trump took as president.
The case wouldn’t shield him from testifying about matters that took place during the campaign, before he took office or those not related to his job as president, Mr. Presnell said.