Special Counsel Robert Mueller wants to talk to President Trump as part of his probe into Russian election meddling. And Trump indicated last month that he wants to talk, too. "I'm looking forward to it, actually," the president said, taking pains to inform his assembled audience of journalists that this eagerness should be taken as evidence of innocence. "Here's the story, just so you understand," he instructed the press: "There's been no collusion whatsoever."
Trump's attorneys are of a different mind. They've been negotiating the terms of the conversation with Mueller's team for some time, arguing — publicly, at least — that the special counsel has yet to present adequate evidence to justify a presidential interview. In private, I suspect their thinking is closer to that of ever-candid former White House communications director Anthony Scaramucci.
"I actually don't want [Trump] to testify," he explained in a recent interview, “because, as a lawyer, I don't want him caught in a 'gotcha' moment where someone accuses him of lying where he may not remember something or something like that."
The Mooch is right. Trump should not voluntarily speak to Mueller — just as you or I or anyone should never, ever voluntarily talk to cops or government investigators.
This is not about Trump or Mueller. Nor is it a fringe opinion. It's about how law enforcement works in America. And it is the advice of no less a legal luminary than Robert Jackson, the chief U.S. prosecutor at the Nuremberg trials who is also the only person in history to serve as a justice of the Supreme Court, U.S. solicitor general, and U.S. attorney general. As Jackson said, "Any lawyer worth his salt will tell [a] suspect in no uncertain terms to make no statement to police under any circumstances."
It is unwise to talk to the cops regardless of guilt. Perhaps you have seen the brief lecture on the subject from James Duane, a Regent University law professor and former defense attorney.
Duane’s lightning-fast exposition of seven reasons to say absolutely nothing beyond "I want a lawyer" has been viewed nearly 3 million times. The other 245 million adults in our country would do well to give it a watch.
Even if you are innocent, Duane contends, and you only tell the police what they already know, and you only tell the truth, and you never make any mistakes (a highly improbably combination of events), you will not help yourself by speaking to the cops. Innocent people lie. Innocent people forget. Innocent people make errors and get confused and exaggerate and estimate in high-pressure situations — and the police, as you may know, are skilled in creating high-pressure situations.
Thus, as the Supreme Court noted in Ohio v. Reiner (2001), the Fifth Amendment is as important to the innocent as to the guilty: One of its "basic functions ... is to protect innocent men ... 'who otherwise might be ensnared by ambiguous circumstances,'" the court said in a unanimous opinion recognizing "that truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker's own mouth."
The great temptation to talk to the cops, of course, is in how it will seem if you are silent. "Too many, even those who should be better advised, view [the Fifth Amendment] privilege as a shelter for wrongdoers," mused the majority opinion of the Supreme Court in another case, Ullmann v. United States (1956). "They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege."
So it is with Trump. When Scaramucci told his fellow news show panelists he would advise Trump against testifying, he was met with wide-eyed shock. Trump is not the originator of the "talking = innocence" framework he presented to the media; his critics generally believe it, too.
But that framework is mistaken. If the president is innocent of collusion, as he incessantly claims, his lawyers will only be doing their most basic duty in preventing him from speaking to Mueller or his investigators. Not talking ≠ not innocent.
Trump's attorneys also no doubt realize their client's, uh, special circumstances. He is incessantly boastful and dishonest, regularly dropping demonstrable falsehoods about matters of no importance. His relationship with the truth is as casual as his marriage vows. Yes, there would be a certain satisfying justice in Trump's habitual lies getting him convicted for a crime of which he is innocent, but it is not the sort of justice we should want enshrined in our courts.
If Trump refuses to speak with Mueller voluntarily, the special counsel could compel his testimony, as defense attorney Ken White, a former federal prosecutor, explains at Reason. This would involve subpoenaing the president to testify before a grand jury, at which point Mueller would have to reveal whether Trump himself is a target or subject of the probe. (A target is a person the prosecutor wants to indict; a subject is "a person whose conduct is within the scope of the grand jury's investigation.")
In that event, Trump should not invoke presidential privilege in an attempt to escape the subpoena, as former New Jersey Gov. Chris Christie (R) has recommended. It is unlikely he would even be successful, White says, and his efforts could foster a constitutional crisis. Indeed, attempts to defy a court order that would be enforced against those of us outside the halls of power would deal a gutting blow to the already bleeding notion that we have "a government of laws, and not of men."
Trump could still take the Fifth if he appears before a grand jury as a target of Mueller's probe. And if he is prosecuted — this is all very hypothetical, of course — he could again decline to testify. His silence might slow the process and make the special counsel's job harder. But if Trump is found guilty without his own testimony, he and the public alike will know his conviction is based not on stupid braggadocio or compulsive lies. We will know it is not a "witch hunt" or a "hoax." We will know it stands on a solid case that persuaded a jury of the president's peers.