Mueller got some answers

Mueller got some answers, but he's not done with Trump

The special counsel may have to subpoena the president to get answers about his time in office.

By DARREN SAMUELSOHN

President Donald Trump on Tuesday finally submitted a set of written responses to Robert Mueller, signaling that he was done for good with the special counsel's questions.

But Mueller is far from done with him.

The special counsel still wants to question the president over his actions while in the White House — Tuesday's answers only covered Russian hacking during the 2016 election. It's a fight that could result in a historic subpoena and eventual Supreme Court ruling, pulling a defiant Trump into a legal squabble that could set groundbreaking precedent for presidential investigations for years to come. Depending on how the battle plays out, House Democrats may even try to pounce and launch impeachment proceedings.

Things could get explosive fast. Next comes the perilous round of negotiations between Trump’s lawyers and Mueller’s prosecutors covering topics like Trump's intentions when firing FBI Director James Comey in May 2017. That line of questioning — which Trump says he shouldn't have to answer — is tied to Mueller's ongoing obstruction of justice investigation.

“These are very deep waters and complicated questions,” said John Q. Barrett, a St. John’s University law professor and former associate who worked under independent counsel Lawrence Walsh during the Reagan-era investigation into secret U.S. arms sales to Iran.

If Mueller can't get the answers he wants, he will have to decide whether he’s ready to test his power to issue a subpoena for the president’s testimony. Mueller’s prosecutors reportedly have made the threat before, but now the step comes with the added wrinkle that it could spark an internal Justice Department riff with his new supervisor, acting Attorney General Matthew Whitaker, who previously has been critical of the special counsel’s investigation.

Should the special counsel win DOJ approval and pull the subpoena trigger, he’d still have to face off against a president who has relished taunting Mueller and enter into a legal battle that could quickly elevate to the Supreme Court, where a newly enmeshed conservative majority is widely seen as friendlier to Trump’s arguments.

Round Two of Mueller versus Trump could also fizzle, though.

Legal experts say that the special counsel might have enough information from documents, presidential tweets and witnesses to wrap up the obstruction of justice portion of his investigation and file a report to his DOJ supervisors — all without forcing a court showdown just to nail down an interview with the president.

“My hunch, at least at this time, [is that] the special counsel doesn't need the president's testimony and that he has provided the president with the opportunity to testify simply so that the president does not later complain about the special counsel's further prosecutorial actions or the conclusions of his report when it is made public in one fashion or another,” said Jack Quinn, the former White House counsel under President Bill Clinton.

For now, it’s unclear what path the dispute will take.

Mueller on Tuesday stuck to the same no-comment posture he’s had throughout the 18-monthlong Russia investigation, refusing to show any of his cards in public beyond what’s required in legal filings.

That’s left a large vacuum that Trump and his attorneys have been eager to fill. The president told Fox News’ Chris Wallace in an interview that aired Sunday that he “probably” would not end up sitting for an interview with Mueller despite more than a year of his own public comments expressing a willingness to do so.

“I think we’ve wasted enough time on this witch hunt and the answer is probably, we’re finished,” the president said.

Trump and his attorneys have also left open some wiggle room for what’s next. Giuliani recently explained to POLITICO that while the president’s legal team has been focused on getting through the first round of questions related to the Russian hacking, they hadn’t foreclosed holding talks with Mueller about an in-person Trump interview.

“We both agreed to leave it open to discussion,” Giuliani said.

But Giuliani noted there is a catch: Trump’s lawyers would fight a special counsel subpoena forcing his testimony on topics tied to his time in the White House — whether the questions cover the Comey firing or other areas tied to an obstruction of justice probe.

“I wouldn’t argue that you can never a subpoena a president. I would argue that you can't in this particular case because to subpoena a president you have a burden you don't have with anybody else,” Giuliani said. “Because you're intruding on his presidential time. You've got to show a real need for it. A real need for it in terms of developing your case and not a real need in order to try to trap him. Trapping is not a legal legitimate objective.”

Whether Giuliani’s arguments would hold up in court is an open question, and many legal experts say Trump would be up against a unanimous 1974 Supreme Court ruling that found President Richard M. Nixon had to comply with the request of the Watergate special prosecutor to relinquish Oval Office recordings of conversations with his aides.

But despite that historic Nixon opinion, Trump allies and even some of his critics say there’s still wiggle room for a narrow ruling that deals directly with a subpoena for a sitting president’s testimony related to a criminal probe involving his time while in office.

“It would be a fascinating legal battle and probably a razor-thin margin,” said Elie Honig, a former federal prosecutor from New York.

Trump allies say they are also bolstered by the views of Brett Kavanaugh, the newly confirmed Supreme Court justice. While Kavanaugh once helped craft a set of graphic questions for Clinton about his sexual affair with a White House intern while serving on independent counsel Kenneth Starr’s team, he later opined in favor of a change in law that would protect a president from a criminal trial subpoena.

“Mueller has the most to lose in terms of litigating the authority of the Office of the Special Counsel,” said a source close to the Trump White House. “If the president gets a subpoena, he’s got a million ways to say, ‘no.’”

Andrew McCarthy, a former federal prosecutor and National Review columnist whom the president has cited on Twitter for Mueller matters, said the special counsel faces the burden of proving a presidential interrogation is necessary.

“I think that the prosecutor should neither interview or subpoena the president unless he’s got strong evidence implicating the president in a potential crime,” he said. “Mueller is no dope. He knows that, too.”

Trump’s first round of written answers do mark the end of one critical phase of the Mueller probe. The president told reporters in the spring of 2017 he was “100 percent” willing to testify under oath about alleged Russian ties to his campaign. He has since backtracked on the pledge and pushed instead for Mueller to accept written answers.

During the negotiations earlier this year, the Trump legal team compiled a list of about four dozen questions Mueller wanted to ask the president, covering everything from what knowledge he had of his former campaign chairman Paul Manafort’s outreach to Russia, to what he knew about national security adviser Michael Flynn’s call to the Russian ambassador to the U.S. after the 2016 election.

According to Giuliani, the special counsel also rejected the written Q&A format earlier this year but later acceded to try out the approach — though the Trump lawyer also insisted the president was under no obligation to answer all of Mueller’s questions.

Trump’s first round of written answers do have some downsides for prosecutors since the one-sided approach allows for evasive responses. His prosecutors also can’t ask in-person follow-ups.

“Written questions are a very poor substitute for an actual interview,” said William Jeffress, a white-collar defense attorney who represented Nixon after he left the White House.

But they do carry some legal weight. The president is indeed now locked in on answers that carry the same legal burden of truthfulness as an in-person session — and they can be used for years to come.

President Ronald Reagan, for example, delivered written answers in 1987 to the Iran-Contra investigators. Three years later, prosecutors relied on the submissions to cross-examine the former Republican president when he appeared as a witness during a trial of his former national security adviser, John Poindexter.

In Clinton’s case, one of the four articles of impeachment adopted in December 1998 by the GOP-led House Judiciary Committee accused the Democrat of “willfully” committing perjury and giving “false and misleading testimony” in writing as part of a federal civil rights lawsuit.

That specific article was later rejected on the House floor, though Clinton was nonetheless impeached on two other counts.