I’m Norm Eisen, Senior Fellow at the
Brookings Institution, and I study governance in the United States and
around the world. Special Counsel Robert Mueller was appointed a little over a
year ago to look at three questions. Number one: did Russia attack our
elections in 2016? Number two: did President Donald Trump or any of those associated with him or his campaign participate in that in any way?
And number three: was there any effort to cover up or obstruct the investigation
of those first two questions by the President or others? Special Counsel
Mueller has had an extraordinarily productive year by the standards of
prior special counsels and independent counsels. He’s secured guilty pleas or
indictments against 24 individuals or companies. He has a guilty plea from
General Michael Flynn, the president’s first National Security Advisor. A guilty
plea from the deputy campaign manager, Mr. Gates. A guilty plea from a campaign
foreign policy adviser, Mr. Papadopoulos The president’s campaign manager, Paul
Manafort, is in jail awaiting upcoming trials. Now we’re approaching a
crossroads on a critical question. The Special Counsel has asked if he can
interview President Trump about these issues, and in particular about the
obstruction question — the question of whether there was any effort by the
president to block or impede the investigation of the Russian attack on
our democracy and the possible Trump or Trump associates or Trump campaign
involvement in it. The Special Counsel has said if he can conduct such an
interview, he will — within 90 days — issue a report on whether or not the president
obstructed justice. My own view is that the president will not agree to an
interview by Bob Mueller. The problem is that the president has been found by The
Washington Post to have lied over 3,000 times in less than a year and a half in
office — and he wasn’t even under cross-examination when he was doing that
by one of the most skilled prosecutors and lawyers in our country! I’ve worked
with Bob Mueller and against Bob Mueller and I can tell you there’s nobody who’s
a finer investigator than the Special Counsel. So, the risk is that the
president will make a false statement under 18 USC § 1001, or — depending if the president is sworn — finds himself in a grand jury under penalty of perjury. Such
a false statement would expose the president to prosecution, irrespective of
whatever else he may or may not have done. That risk is simply too great, given
the president’s inability to distinguish between truth and lies. So, I’ve thought
all along that it’s unlikely that the president will cooperate and sit for an
interview, and his personal lawyer Rudy Giuliani has been intimating as much
lately. I read Giuliani’s statements to say the
president is less and less likely to participate in such an interview. What
will that mean once the president says no? Then Mueller will have a choice: should he subpoena the president or not? I believe that Mueller can’t complete his
investigation without attempting to get the president’s story. If the president
refuses to agree to his subpoena, then Mueller will have to proceed obtaining
one from the court, attempting to force the President to testify. That will put
us into US v Nixon land, the last time we had a fight. It was also about the
president’s own words (President Nixon, who didn’t want to turn over his tapes).
The Supreme Court unanimously found that he had to and — I believe — if there is a
court fight here, the same thing will happen. President Trump will ultimately be required to testify. The problem is that will only come after
a great deal of additional and divisive court battles that will continue through
the election season, so that’s a downside. Does President Trump want this cloud
hanging over him for longer if he is only going to lose at the end? And even
then, that won’t be the end of the story, because once the president is actually
sitting there (he’s required to testify, as I believe will happen if Mueller goes
this route), then the president will need to answer questions on an individualized
basis, and he may claim privilege that he doesn’t have to answer a question because it’s attorney-client privilege (that is, the question gets into something his
lawyer told him) or because of executive privilege (there is a recognized
doctrine of executive privilege which protects some communications needed for policymaking in the executive branch but it has not been tested extensively). So,
we’ll be dealing with questions of first impression. There’s a crime/fraud exception: if you make a communication in order to
advance a crime or a fraud, the attorney-client privilege doesn’t apply.
Will that same carve-out be applied to the executive privilege? So there’ll be
another round of litigation — I predict — over those questions with appeals,
possibly multiple trips to the Supreme Court, and this issue of whether or not
there was obstruction will drag on and on for all those reasons. Another
option — I don’t think it’s the one he’ll take but it’s a legitimate option, and he could very well do it — is for Robert Mueller to say, “well, the
president’s refused to testify, but I believe I have enough evidence to write
a report and make a recommendation to Congress”. He may choose to short circuit
a long round of court battles if he believes he has strong enough evidence
to establish some impropriety in his report to be shared with Congress. I’ve
worked on many scandals over the years, both working as a defense lawyer and
also pushing for accountability. They included
many of the allegations of the Clinton years, including those that led to the
impeachment of President Clinton. I believe that this is a more serious
scandal than any we have seen in this country since Watergate, and maybe even
more disturbing than the Watergate scandal. That remains to be seen, and the
the denouement will depend on how President Trump answers Robert Mueller’s request to testify.