Should President Trump Agree to be Interviewed by the Special Counsel?

Ken White -- a former federal prosecutor who writes at Popehat and Reason -- argues persuasively that President Trump should not agree to be interviewed by the feds (and neither should anyone else).  The article appeared in early February, but it was just brought to my attention by my nephew Ben.  It remains as salient as ever; here is the gist:

I gave up early on predicting what this administration will do. But I say this with complete confidence, based on my 23 years in federal criminal practice: There is absolutely no good reason for Trump to talk to Robert Mueller and his investigators voluntarily.

To understand why, you have to understand the goal of a conversation like the one Mueller proposes.

 The president is no mere witness. He is at least a subject, and likely a target, of the special counsel's investigation. In federal criminal parlance, a witness is someone not suspected of wrongdoing who has useful information, a subject is someone suspected of wrongdoing who may well be charged if the evidence supports it, and a target is someone whose indictment is actively sought as a purpose of the investigation. When the feds interview a subject or target, their goal is not mere information-gathering or fact-finding or "clearing a few things up." Their goal is the hunt.

In the old westerns, rather than take the trouble of hauling mustachioed miscreants to desultory trials, lawmen would often provoke them into drawing first, thus justifying shooting them down where they stood. A modern federal interview of a subject or target is like that. One purpose, arguably the primary purpose, is to provoke the foolish interviewee into lying, thus committing a new, fresh federal crime that is easily prosecuted, rendering the original investigation irrelevant. Title 18, United States Code, Section 1001, which makes it a felony to lie to the feds, is their shiny quick-draw sidearm. This result not an exception; it is the rule. It happens again and again.

You can read the entire article here.

Comments

[Deep State Special Legal Counsel]

"Five-O" never wants to just talk to INNOCENT people. Even a high profile, boutique Super Leading AV Peer respected heavy hitter like me tells clients to shut their mouths, or "Don't Blow." After all, when you get down to it isn't Mueller just another cop or prosecutor, except higher profile?

[James Grimmelmann]

Presumably one of the motiviations for a voluntary interview is the one the President's lawyers keep mentioning when they talk to the press: agreeing to one is something they can negotiate to give the Special Counsel in exchange for other concessions, such as limits on the scope and format of questions.

[anon]

What are we to make of that "interview" with Clinton regarding the "email affair"?

Has anyone writing on this website read the background and has anyone writing so authoritatively on this subject now taken the time to actually objectively learn about the details surrounding that "process"?

[anon]

BTW, for those who only hear one side of the story, day and night, night and day, and who can't think about, objectively consider or even accept the possibility of any fault on their "team" ...

Remember, if you write about and think about and only pay attention to the faults of Republicans, and never apply the same level of scrutiny, skepticism and ethical judgment to the "Democrats" then you are ignorant.

Not stupid, ignorant. Unknowing and unaware. Wrong, by definition, in your view of the world.

[Deep State Special Legal Counsel]

anon^^^^

That is precisely why labels are awful. I don't see any political advocacy here. I see a criminal defense attorney asking if the President should talk to an interrogator or exercise his Fifth and Sixth Amendment rights against self incrimination. Unfortunately for us all....the ENTIRE country, our current President is subject to this. All people of good will or whatever label of the moment, should be concerned. What if you heard a radio ad on WBBM that said, this ad was paid for by the Russian Federation? Or an ad on ABC with the disclaimer "Paid for by Putin's Government?"

[anon]

Right, RT should be banned. In the land of free speech, speech by "Russians" should be against the law and verboten. And, speech by "foreigners" in general. We have a law against it! So say the liberal saints who decry xenophobia.

And, two words about the process here: "Ken Starr." Let's go back and review the coverage in the mass media about Clinton's attacks on him.

Those writing today have precious little objectivity, common sense, and historical perspective. ("History" in this climate, as in all climates dominated by a narrow-minded cadre of the over-privileged that controls both academia and the major organs of mass media, is simply rewritten to leave out or twist beyond recognition inconvenient facts.)We are living in Animal Farm, and the pigs are demonizing and twisting and accusing everyone else in the process.

What is so striking is that it is the now-old demonstrators, who once rallied against all that this bs represents, who are leading the charge to narrow our thinking about political issues (there is only one right position, even if that position changes with the political winds), control our speech, limit our freedoms in general, and dictate a view of the world that was captured so brilliantly in 1984. ("I can see by your coat my friend, you're from the other side ...")

I want to know the position of the author above on Clinton's interview around the "email affair." Until I see that the position was the same, I can't accept this agiprop.

[Deep State Special Legal Counsel]

ANON^^^ There is nothing to suggest criminality on Clinton's part. Secretary Clinton is of the generation, like me, that views e-mails, texts, Tweets, Instagrams, Facebook posts and the dozens of other electronic, cyber forms of communication as bullshit. It is not a document, letter, memorandum, record, file, check stub, report, note or something that is physical and real. For instance, as an attorney, I am a required to keep client files and financial documents for almost a decade. There is nothing in the Rules of Professional Conduct that says I must keep an email or tweet for 10 years.

If Trump colluded with the Russians, that is an act and indeed a crime. If I tossed away client files and financial records, that is an act and could be a crime.

[Deep State Special Legal Counsel]

...to continue, McCabe, Comey, Storny Daniels all kept DOCUMENTS, MEMOS, and contemporaneous notes of their meetings with DJT. Something real and visceral. When I have an angry, indolent client who doesn't like his result...ie prison and is a potential bar beef...I have a MEMO to FILE. Not an email or tweet to file. A hard copy of my immediate recollection and then I send a certified letter, postage pre-paid. This electronic communication is garbage and everybody knows it... Here today, gone tomorrow.