So what are we to make of the 48 questions Robert Mueller wants to ask Donald Trump, as revealed last night by The New York Times? Two things.
One: From this list, it appears that Mueller is for now mostly interested in whether Trump obstructed justice. The questions, especially the 18 questions that are related to James Comey, lay out the contradictions of Trump’s statements in a clear and comprehensive manner.
Two: In addition, there are 13 questions about collusion and coordination with Russia. Some are awfully general, like “When did you become aware of the Trump Tower meeting?”—that is, the meeting involving Donald Jr., Jared Kushner, Paul Manafort, and Russian lawyer Natalia Veselnitskaya. The open-ended nature of these questions in particular may be designed just to let Trump talk and trip up.
On the first point, reading through the questions, it’s hard to see how Trump dances away from obstruction. There are a few different versions of “Why did you fire Comey?”—asking, for example, about the interview with Lester Holt on NBC, in which Trump admitted that he fired the FBI director over Russia. “What did you mean” in the Holt interview, the question is phrased. This may be an invitation for Trump to say, “Hey, I was kidding!”—or an invitation for the president to contradict himself.
There are three or four questions that can be interpreted as being about conversations Trump had with Comey and other FBI officials to try to get them to back off Michael Flynn and the campaign more generally. Again, these read like attempts to get Trump on the record on questions related to obstruction of justice.
On the second point, about collusion, the questions seem to suggest that Mueller has less to go on. For example, there is not a question that really drills down into what happened that day on Air Force One in July 2017, when Trump and aides discussed the 2016 Trump Tower meeting and the president dictated his son’s statement. That’s an odd omission, as it would seem to be a key event.
It’s hard to tell what it means. It could mean Mueller doesn’t have much on that. And it could mean Mueller has the goods on it, but doesn’t want that known yet. That is, Mueller and his team surely knew that this list would be leaked immediately, so one would have to bet that Mueller knows more than these questions reveal and just wanted certain things out and is holding certain other things back.
How will Trump react to this list? He blasted out a few tweets about it Tuesday morning, trying to downplay it and of course lying (“No questions on Collusion”). Given the false bravado that has gotten him through life so far, he’s bound to look at the questions and think “This will be easy.” That may be another little psychological game team Mueller is playing here: Make the public questions vague and open-ended so Trump will think he can handle being questioned under oath.
But given that the guy is constantly plunging himself deeper into the quicksand with his loose talk—like his apparently accidental admission last week on Fox & Friends that Michael Cohen was indeed his lawyer on the Stormy Daniels matter—there’s every chance that if he has to sit for several hours of grilling by experienced prosecutors he’ll blurt out something self-incriminating without even knowing it.
There are two questions that loom as we go forward. The first is, can Trump be compelled to testify under oath? The short answer is yes. He might invoke his Fifth Amendment right against self-incrimination. The Supreme Court has never ruled directly on the question of whether a president can invoke the Fifth on a criminal matter against him, because no president has tried it before.
But if anyone would, of course, Trump would. Then our eyes would turn to the Supreme Court. In the past, the court has twice ruled against presidents in somewhat similar situations—it made Richard Nixon turn over his tape recordings, and it ruled that Bill Clinton was not above the law in the Paula Jones matter. So it seems possible and even likely that someday, it will be up to the Supreme Court to decide whether to compel Trump to testify. Would the five conservatives really hold that Trump’s Fifth Amendment rights are greater than the clear public interest in obtaining a president’s sworn testimony on a criminal matter involving him?
And question two: What can be done if Trump just lies his head off? Or, assuming the court would hypothetically compel him to testify, he barricades himself in Mar-a-Lago and refuses to show up? If he shows up and lies, well, maybe Mueller can prove that he’s lying—but he would have to prove it not to the satisfaction of a jury, but to the satisfaction of Republicans in Congress, who would be the only people with the power to punish a lying president. Good luck with that.
And if he just refused? Well, we’re getting ahead of ourselves, but with Trump anything is possible. And that’s the real importance of this leak. Seeing these questions in black and white reminds me, starkly, of the showdown that is inevitably coming between this lawless president and the body of laws that are supposed to sustain the republic. It brings that fateful day closer, and if you’re not nervous about that day, you’re not much of a citizen.