49 (or so) Questions

Ken AshfordL'Affaire Russe, Trump & AdministrationLeave a Comment

A pretty big bombshell yesterday, as the NY Times published a list of questions that Mueller wants to ask Trump.  This is a HUGE read on what Mueller is doing and has investigated.

Before I get to the questions, there is one BIG question about these questions: Where did they come from and how did the Times get them? (Okay, that’s two questions, but they are related).  The Times said they are questions that the special counsel’s team has previewed with Trump’s lawyers as they negotiate whether the president will sit for an interview.  So the leak could come from Trump’s lawyers or from Mueller’s office. It is unlikely that they come Mueller’s air-tight office, (and the NY Times article says so) but it could have come from one of Trump’s lawyers, or (my guess) a secretary or paralegal from one of the lawyers’ offices.

Michael Zeldin, who now works as a legal analyst for CNN, told “New Day” that he doesn’t believe these questions came actually from Mueller.

“We have, this morning, been calling these questions that Mueller propounded, but I don’t believe that that’s actually what these are,” he began. “I think these are notes taken by the recipients of a conversation with Mueller’s office where he outlined broad topics and these guys wrote down questions that they thought these topics may raise.”

He explained that the way the questions are written make it pretty obvious.

“Because of the way these questions are written,” Zeldin explained his methodology. “Lawyers wouldn’t write questions this way, in my estimation. Some of the grammar is not even proper. So, I don’t see this as a list of written questions that Mueller’s office gave to the president. I think these are more notes that the White House has taken and then they have expanded upon the conversation to write out these as questions.”

He agreed with fellow legal analyst Jeffrey Toobin that the questions seemed introductory in nature and that they indicate the investigation won’t end any time soon.

Whoever it came from, it is hard to see how Mueller OR Trump’s lawyers would want this revealed. That’s why I think it is a staffer — there seems to be no strategy for its release.

Trump is feigning outrage:

I like when he does this because it shows his (mis)understanding of the law as explained to him by his lawyers (or perhaps they are not explaining it at all). Trump talks about a phony crime called “collusion” as if that’s the crime Mueller has been investigating. But of course, “collusion” is the word that TRUMP keeps using, not the investigators.

As for his assertion that it would be “very hard” to obstruct justice for a crime that never happened, Trump has two problems: (1) It IS possible to obstruct justice and a “crime” isn’t even needed — only an investigation; and (2) there actually WERE crimes. Indictments exist for Manafort, Gates, Flynn, and about 20 Russian entities.

Does he really not understand the legal jeopardy he is in, or is he trying to convince his followers of that?

So let’s turn to the questions themselves. The Times has a full breakdown, as well as the context, so that’s the best summary available.  But here’s a short and sweet version:

Most of them do deal with obstruction, but not all. Asking when Trump became aware of possible meetings with Russia, for example, puts him square in the collusion camp.

The Washington Post agrees with me (see second paragraph below) and has other take-aways:

First, it’s impossible to imagine Trump getting through an interview without contradicting himself or others’ whose testimony Mueller already has. Just as Trump’s public blather has given Mueller plenty of ammunition, he is bound to make incriminating statements. The questions are too numerous and detailed, and Trump’s self-control and attention span so limited, that one can expect him to melt down somewhere between “What did you know about phone calls that Mr. Flynn made with the Russian ambassador, Sergey I. Kislyak, in late December 2016?” and “What did you mean when you told Russian diplomats on May 10, 2017, that firing Mr. [James B.] Comey had taken the pressure off?”

Second, the questions, contrary to Trump’s assertions, suggest that collusion is very much on the table. Questions such as “When did you become aware of the Trump Tower meeting?” and “What knowledge did you have of any outreach by your campaign, including by Paul Manafort, to Russia about potential assistance to the campaign?” are designed to probe Trump’s awareness of the dozens of interactions between members of the Trump team and Russians during the campaign and transition. Mueller very well might have information from other witnesses that would contradict Trump if he decides to deny knowledge of Russian collaboration. A question such as “What communication did you have with Michael D. Cohen, Felix Sater and others, including foreign nationals, about Russian real estate developments during the campaign?” doesn’t come out of nowhere. The prosecutors have documents and a slew of other witness interviews that might give them a picture of Trump’s communications. Denying his involvement with others involved in plotting with Russians, in that case, will only serve to put Trump at risk of being charged with lying to the FBI.

Third, reporters, mimicking the White House spin, act as though Trump’s testimony is entirely optional. Given how specific the questions are and their obvious relevance to identifiable crimes (obstruction, witness tampering, illegal solicitation of foreign campaign assistance), Mueller would in all likelihood get a subpoena and find a judge to enforce it if Trump refused to testify. Trump would then find himself either in the entirely untenable legal position of refusing to abide by a court order or in the entirely untenable political position of taking the Fifth Amendment. The latter is his constitutional right, but as the chief of the executive branch who took an oath to take care that the laws are faithfully executed, Trump’s invoking the Fifth would be an acknowledgment that his personal interests conflict with his oath of office.

Fourth, Mueller clearly doesn’t buy the argument that the president cannot obstruct justice by exercising his constitutional authority (e.g. firing the FBI director). The questions are largely directed at determining whether Trump exercised his powers with corrupt intent. Did he fire Comey to protect himself from the Russia investigation? Did he craft a cover story about the June 2016 Trump Tower meeting with the intent to deceive the public and prosecutors? Those arguing Trump “can’t obstruct justice when he’s acting as president” will need a new rationale to defend the embattled president.

Fifth, if Mueller is bound by the standing Justice Department memo that concludes a sitting president cannot be indicted, Trump’s status as a subject, not a target, makes sense. The facts are already there, one might readily conclude, to make out a case for obstruction, so how could he not be a target? The answer: Trump cannot be a target since he is not (presently) capable of being indicted. If Mueller finds Trump did commit criminal acts, he can suggest in his report that impeachment is appropriate and/or recommend that Trump be indicted after he leaves office.

Sixth, there doesn’t seem to be a lot in Mueller’s questions that would go to financial crimes such as money-laundering. Perhaps these issues are not on Mueller’s radar screen (although they surely could be matters for federal and/or state prosecutors in New York). Alternatively, Mueller may be relying entirely on other evidence (e.g. bank records, Trump organization employees’ testimony) on which to base such charges. If there is potential liability there, Michael Cohen’s testimony is likely to be relevant; hence the raid on Cohen’s home, hotel and office might be essential to proving whatever financial crimes Trump may have committed.

Relating to that last paragraph, I agree.  There are almost no questions that pertain to Trump’s dealings with oligarchs. But then again, maybe they don’t need to ask Trump about that since that all depends on documents.

My vote for the most interesting question is…

What did you think and do in reaction to the news that the special counsel was speaking to Mr. Rogers, Mr. Pompeo and Mr. Coats?”

This is a real mystery. The Washington Post reported last year that Trump asked Director of National Intelligence Daniel Coats if he could intervene to get Comey to back off Flynn, with then-CIA Director Mike Pompeo present at the meeting. (The other official mentioned here is National Security Agency Director Michael Rogers.) But this isn’t that.

Lots of questions on the Times’s list are very general and clearly refer to things that have been reported publicly, but this seems to refer to a specific episode about which we don’t really know anything. Exactly what it is is anybody’s guess.

Another good one…

“What knowledge did you have of any outreach by your campaign, including by Paul Manafort, to Russia about potential assistance to the campaign?”

The operative word there is “to”.  “To” Russia.  Not “from” Russia. It suggests Mueller may have reason to believe the Trump campaign requested Russian assistance in the campaign, possibly through Manafort.


Mystery all but solved:

In the wake of the testy March 5 meeting, Mueller’s team agreed to provide the president’s lawyers with more specific information about the subjects that prosecutors wished to discuss with the president. With those details in hand, Trump lawyer Jay Sekulow compiled a list of 49 questions that the team believed the president would be asked, according to three of the four people, who spoke on the condition of anonymity because they were not authorized to talk publicly.

But the Times said that the questions did not come from someone on the Trump legal team.

Who does that leave?

John Dowd, who USED to be on the Trump legal team, but left for reasons that are still unclear.  He has denied it, but nobody believes him.