Assuming I were counsel to the President, I would advise him not to do it. Why? For the same reasons I recommend and advise ALL my clients not to give statements, not to go to the media, and not to post about their cases or injuries on social media.
Very simply, the more the other side knows about you and how you think, the worse off you are and the better off they are.
Let your lawyers speak for you. Do not try to be your own lawyer. A person who represents himself or herself has a fool for a lawyer.
It’s pretty clear to me that if the Special Prosecutor, Robert Mueller, decides to force the President to testify to a Grand Jury, the President would have to testify to the Grand Jury. In United States v. Nixon, 418 U.S. 683 (1974), the U.S. Supreme Court ruled that President Richard Nixon could not withhold tapes of his conversations with indicted Watergate defendants based on a claim of Executive Privilege. “To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of “a workable government” and gravely impair the role of the courts under Art. III.”
Later, in Clinton v. Jones, 520 U.S. 681, the Supreme Court ruled that the President was subject to legal process for personal acts and allegations against him, and could not claim immunity for personal harms just because he was the President: “[I]t is settled that the Judiciary may severely burden the Executive Branch by reviewing the legality of the President’s official conduct, see e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, and may direct appropriate process to the President himself, see e.g., United States v. Nixon, 418 U.S. 683. It must follow that the federal courts have power to determine the legality of the President’s unofficial conduct. The reasons for rejecting a categorical rule requiring federal courts to stay private actions during the President’s term apply as well to a rule that would, in petitioner’s words, require a stay “in all but the most exceptional cases.”
So, if former FBI Director Mueller decides to subpoena the President to testify before a Grand Jury, he would ultimately have to appear and testify under oath. The weird part about a Grand Jury is that the witness doesn’t get to have a lawyer in the room to object to questions or cross-examine witnesses. Testifying before a Grand Jury is a dangerous place to be. As Sol Wachtler, at the time the chief judge of New York, famously said: “A good prosecutor could get a grand jury to indict a ham sandwich.” I don’t know if he saw it coming or not, but Judge Wachtler later became a ham sandwich and was, himself, indicted. Anyway, based on pretty clear law I think that the President can be forced to testify to the Grand Jury. I also think it’s pretty clear that Robert Mueller is a very good prosecutor. I’m tempted to say something witty about “President Ham Sandwich”, but, maybe later.
Over the last couple of weeks I’ve listened to various experts offer opinions about what the President and his lawyers are up to, and what the Special Prosecutor and his lawyers are up to. Are they negotiating about obtaining an interview? A deposition? The scope of the questioning? Whether the interview or sworn statement would be videotaped? Where it would occur? All that kind of stuff.
One of the dumber suggestions I heard a couple of times is that the President’s lawyers should offer and agree to provide him for an interview with the agreement that it is “not under oath”. Their idea is that Mr. Trump is so prone to factual errors that if the FBI interviews him and he makes a mistake of fact he wouldn’t be subject to penalty of perjury.
The problem is that lying to the FBI is, itself, a felony. The Special Prosecutor, as an arm of the Department of Justice, employs FBI agents to interview witnesses. Lying to a federal investigator is a felony under 8 U.S. Code 1001. “Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully . . .makes any false, fictitious or fraudulent statements or representations. . . .” is subject to imprisonment for up to 5 years. Lying under oath is also a felony, called “perjury”. That may provide for separate penalties, but the point is that even voluntary statements made to federal investigative agents, if intentional and false, are grounds for imprisonment, fines, and, perhaps, impeachment.
I’m trying to totally leave aside the present President’s obvious inability to keep his mouth shut regarding matters in which he should completely keep his mouth shut. This goes back to the basic principle I’ve learned over the years that things my clients say to others, or in recorded statements to insurers, or on social or public media, more often than not hurt their cases. The President is of course in an incredibly scrutinized and public position, but if I were his lawyer I would cringe every time I heard him attack the investigators, assert that the investigation is a witch hunt, and/or accuse prosecutors and investigators of political bias. I would know that the prosecutors and investigators are recording and paying attention to every word, looking for inconsistencies, and applying the lawyer’s art of looking at facts from all possible perspectives, not just the perspective intended by the person making the statement . Far too often, people say things to help their case, that actually seriously hurt their case. Proclaiming your innocence too loudly and too often, after a while, makes a person look guilty. Plus, they tend to change their stories; truth is easier to keep straight than lies.
There are no clear or good answers for Trump and his lawyers if Mueller wants to interview him or subpoena him to testify. The simple question: “Did you fire Jim Comey because of the Russia investigation?” has no good answer. I it’s “yes”, the President admits to obstruction of justice. If it’s “no”, the President contradicts his own previous public statements in an interview, as well as what he told the Russian Ambassador in the Oval Office when he called Comey a “nut case” and said he got rid of him because of the Russia investigation.
So if the President can’t avoid testifying, and could be subject to a felony whether he gives an interview to the Special Counsel or testifies to a grand jury, why do I say I would advise him to NOT give the interview?
Because, two bites out of the apple.
If Mr. Trump gives an interview to the FBI, it will be recorded and he will be reminded that he is voluntarily giving the interview and that he voluntarily agrees for it to be recorded so a transcript can be made. If he makes false statements in the interview, it’s a big problem, but it also leads to a second big problem.
Which is, that the Special Prosecutor could then still subpoena the President to testify to the Grand Jury. If that happens, Trump could be questioned not only from all the public statements he’s made (plus emails, documents, and statements and testimony of other witnesses), but also from his statements made in an interview to the FBI.
And one of the charges brought before the Grand Jury could be Lying to a Federal Investigator, which as we see is a felony in its own right.
If you are the President of the United States and need a good lawyer, don’t call me. I would have to claim a conflict of interest or something. If you have been injured and need some help, send me an email. I’d be bad at representing President Trump, but I’m pretty good at advising and representing injured people.