News that President Donald Trump’s lawyers want him to avoid an interview with special counsel Robert Mueller has been greeted by the chattering classes with disdain. Unfortunately, it has also provided said chatterers an opportunity to advance a dangerous canard—the one that says that if you’re innocent, you should voluntarily submit to talking with the authorities.
Evan McMullin, the former CIA operations officer, turned Never Trump” independent presidential candidate, summed it up perfectly on Twitter: President Trump “should sit for an interview with the Special Counsel,” he wrote. “If he’s done nothing wrong, then he’ll have no trouble keeping his story straight. It’s just one of the benefits of truth.”
Likewise, on CNN’s Anderson Cooper 360 Monday night, legal analyst Jeffrey Toobin echoed the sentiment, saying: “The president's defenders have been saying, ‘Oh, they're trying to trap him. They may have documents that he doesn't know about.’ Too bad. Just tell the truth. It's not a crime to make a mistake. It's not a crime not to remember things. But if you lie, that's not a perjury trap.”
The “as long as you’ve done nothing wrong, you have nothing to worry about” line sounds like common sense, but it’s very bad legal advice—for a president, and for the rest of us.
Trump’s more sagacious backers know better, and are advising him to avoid making this mistake. They are also suggesting that the bar is high for a president to be compelled to testify. For example, former New Jersey governor Chris Christie said: “I don’t think the president of the United States, unless there are credible allegations—which I don’t believe there are—should be sitting across from a special counsel.” This strikes me as a plausible, if debatable, legal argument. Regardless, it is the right argument for people advocating on behalf of Donald Trump to make, inasmuch as it is in his best interest to make it.
The truth is that it’s a bad idea to voluntarily submit to such an interview. President Bill Clinton was essentially compelled to testify for over four hours—and we know how that ended up for him.
But there’s something else that bothers me about this. Donald Trump can afford expensive lawyers to give him advice; if he chooses to ignore it, that’s on him. I’m actually more worried about the advice that is being imparted here to the public. The notion that if you’re innocent and honest you should submit to an interview is a dangerous one. For one thing, the corollary suggests that only guilty people should be worried about talking. For another, it strikes me as naïve and dangerous, even as it sounds like conventional wisdom.
A few years ago, James Duane, a professor at Virginia's Regent Law School, delivered a lecture titled “Don’t talk to the police” that went viral. During his talk, Duane points out that “even if your client is innocent, and denies his guilt, and almost entirely tells the truth, odd are good he will easily get carried away and tell some little lie or make some little mistake that will hang him. This is human nature. He gets in there, it's a stressful situation.”
This seems especially likely for Trump, a man who habitually lies about little things. It’s entirely plausible that he could be innocent of anything to do with Russia, yet perjure himself on some otherwise unrelated thing.
Duane goes on to provide more examples of how talking—even if you’re innocent—can provide prosecutors with information they could use to convict you. For example, he says, suppose the police suspect you of murder, and you tell them: " I wasn't anywhere near that place. I don't have a gun, and I have never owned a gun in my life. I don't even know how to use a gun. Yeah, sure I never liked the guy, but who did? I wouldn't kill him. I have never hurt anybody in my life, and I would never do such a thing."“Let's suppose every word of that is true,” Duane continues, “One hundred percent of it is true. What will the jury hear at trial? ‘Officer Burke, was there anything about this—your interrogation, your interview with the suspect—that made you concerned that he might be the right one?’ ‘Yes there was. He confessed to me that he never liked the guy'."
This, of course, is not a perfect analogy. Professor Duane is describing a scenario where a suspect talks to the police and then that information is later used against him during a trial. But some of the rules remain the same. One could argue that the situation for Trump is even more perilous, since he would be under oath.
It’s entirely possible for an otherwise innocent person to lie about some unrelated thing (Bill Clinton lied to a federal judge during a deposition about sex)—and it’s also entirely possible that a person who is talking to the authorities will inadvertently give away some information that is unfairly used against him at a later point.
So why are pundits dispensing this counsel? First, it’s fair to say that many of them don’t like Trump—who, in fairness, has been publicly (and stupidly) saying he wants to talk to Robert Mueller under oath.
Additionally, it’s only natural for those of us in the media to be biased toward transparency, news, and (yes) entertainment. The notion of Trump being questioned seems like great fodder for commentators. Personally, I might be rooting for Trump to testify for these selfish reasons. But as I said on CNN Monday night, “If I were advising him, I would say ‘No way would I let you do this.’”
Yes, he’s the president of the United States, and yes, no president is above the law. If the Supreme Court compels Trump to testify, that’s that, he goes and testifies. But for now, it would be dereliction of duty and professional malpractice for Trump’s attorneys to advise that he do so. Along with “don’t talk to the police,” another maxim rings true today: “don’t listen to the pundits”!