Will Trump Be Required to Testify for Mueller?

Will Trump Be Required to Testify for Mueller? January 12, 2018

With negotiations apparently ongoing and Trump’s attorneys desperate to keep him from having to testify under oath for the Robert Mueller investigation, Paul Waldman lays out some possible outcomes. There are several possibilities, constrained by possible court challenges and by prior precedent involving Bill Clinton.


What Mueller surely wants is the most open conversation possible, not limited in time or subject. That way he’d be able to take his time, ask Trump about anything and ask all the follow-up questions he wants. Trump’s attorneys, on the other hand, are dealing with an erratic client whom they surely fear will implicate himself, either through sheer stupidity or because Mueller forces him to do so under oath.

So you can conceive of Trump’s team having an ordered set of preferences. The best scenario would be that Trump answers no questions at all. The next best scenario would be that Trump gives written answers to questions, which would enable the lawyers to carefully edit the answers to make sure none of them are damaging to him. After that would be an interview that’s limited in some way. The least preferable option would be an open-ended deposition.

Trump’s lawyers may try to limit the questions to just those about direct contacts with Russia, since it’s entirely possible that all those contacts happened without Trump’s specific knowledge. But it’s almost impossible to see Mueller agreeing to that since his inquiry is also focused on obstruction of justice — including Trump’s firing of FBI Director James B. Comey, which the president admitted on national television he did out of anger over the Russia investigation and after which he told the Russian foreign minister and ambassador the same thing. Mueller has also been pursuing other avenues of potential prosecution as well, including matters related to Trump’s spectacularly shady financial history, which is peppered with contacts with a colorful cast of Russian characters, including mobsters and oligarchs.

Remember what happened with Clinton and the Ken Starr investigation. Starr wanted him to testify before a grand jury and issued a subpoena requiring him to do that. But in that situation, he would not have an attorney present and there would be no limit on what could be asked. The two sides negotiated a deal where he would testify under oath, but not before a grand jury and with his attorney there. And it took place at the White House rather than in a courtroom, and was videotaped (and eventually released publicly). So there is room for negotiation here and a solid precedent for it.

The real wildcard, as Waldman points out, is the possibility that Trump would just refuse to testify, even with a subpoena. That would then result in legal action, with Mueller asking a federal judge to force him to testify, and would quickly reach the Supreme Court. Waldman has his doubts as to whether the Supreme Court would rule against Trump, but I’m quite confident that they would. Certainly the four liberals would do so and I have a hard time believing that Roberts would rule the other way, or Kennedy. It would put the president above the law and create a serious constitutional crisis. Roberts, in particular, would almost certainly not accept that.

But all of that would be happening in the middle of the midterm elections too and would only be bad for the Republicans. I’m sure the Republican leadership would implore Trump to just negotiate the best deal possible and testify because it makes them all look bad if he appears to avoid cooperating with the investigation. It would make him look very guilty. But Trump is not known for taking good advice, so I would not at all be surprised if he were to ultimately refuse to testify and have to be forced to do so.

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