Should Donald Trump sit down to a face-to-face interview with Robert Mueller and his team?

The answer for me has been clear for a long time: Just Say No.

On January 24, 2018, I wrote, Trump should not voluntarily submit to an interview with Mueller:

Trump’s impromptu comments [that he looked forward to an interview] demonstrate, beyond a reasonable doubt, why Trump SHOULD NOT sit down with Mueller to answer questions, under oath or otherwise.

Trump is a salesman by nature. He’s given to bombast and hyperbole. He shoots from the hip.

Those characteristics, while they proved valuable against the comatose and drab Hillary, could be a disaster in an interview with Mueller. Mueller’s team is very experienced in these perjury and obstruction traps. They will not ask any questions they don’t already know the answer to, and the questions they ask will not be posed to obtain information. They have all the information. They will be probing not for information, but for mistakes.

Don’t do it. I don’t know what power Mueller would have to compel testimony, but nothing should be done voluntarily.

In early April I made the point on the Mark Levin Show:

I have since reiterated that position repeatedly, including when in May Rudy Giuliani seemed to suggest an interview was possible, Rudy’s terrible, horrible, no good idea about Trump sitting for a Mueller interview to speed things up:

This is a horrible idea on so many levels. It will not even wrap up the Russia investigation. It will end nothing.

If Mueller wants Trump to sit across the table from him and answer questions, he should have to fight for it, and Trump should fight back. To the Supremes if need be. This is about the survival of Trump’s presidency which is being pursued by Mueller’s posse of hired guns.

This also will not help Republicans in the midterms. You want to get Trump voters to the voting booth? Appeasing Mueller so he can drop his bombs by September 1 is not the way. If Mueller will not back off the interview setup, then precipitate a court battle over whether the presidency can be stolen. If you want voters to fight for you, then fight for yourself as an example.

In news of other horrible ideas, I plan on a Legal Insurrection “Swimming with the Sharks” trip just before which I will throw some blood in the water to see which way the current is moving.

The concept of a perjury trap has been made for months, but particularly in the past week. It’s the phrase of the week in the news cycle, with various media asserting that if Trump is willing to tell the truth, he has nothing to worry about.

Rudy has been pushing back hard:

President Trump’s personal attorney Rudy Giuliani slammed as an “idiot” a New York Times reporter during an interview Sunday on Fox News’ “Media Buzz,” saying it should be apparent that even honest clients run a major risk of falling into a so-called perjury trap if they agree to meet with federal investigators.

The Times’ Nicholas Confessore argued on MSNBC this week that Giuliani’s concerns that Trump might be charged with lying to investigators if he met with Special Counsel Robert Mueller’s team revealed that “the president’s story is wrong, it’s a lie.”
Giuliani unloaded on Confessore, saying prosecutors often aggressively pursue perjury charges even where the underlying truth of the matter involved is unresolved, and that it would be “malpractice” to ignore that threat.

“I don’t know if he’s deliberately being like that or if he’s a complete moron, Giuliani said. “The reality is, you can be accused of perjury when you’re telling the absolute truth. Let me give you an example for that idiot — which I attribute, really, to the malice of the New York Times.”

Giuliani then offered an extended hypothetical to illustrate his point.

“I didn’t come to your house last night,” Giuliani said to host Howard Kurtz, by way of example. “You’re lying, and you say I did come to your house. They put me under oath and I say, I didn’t come to Howie’s house last night. But they elect to believe Howie, even though Howie lied about it twice. I have no control over that. That’s what they did to Martha Stewart. And since that case, all of us lawyers have been very careful.”

The best explanation for why a sit down with Mueller is a potential perjury trap, and how even a well-intentioned witness can fall into is, is in Andrew McCarthy’s post this weekend, Of Course There Is Such a Thing as a ‘Perjury Trap’.

McCarthy points out that a “perjury trap” as the phrase is commonly used, refers to both technical ‘perjury’ and giving false statements:

What we refer to as a “perjury” trap covers both perjury and false statements. The difference between the two is more form than substance. To oversimplify a bit, perjury is a lie under oath; a false statement or material omission is a lie told to government investigators when no oath has been administered; the potential sentence for both is zero to five years’ imprisonment.

McCarthy then makes the point that what constitutes a prosecutable offense is solely up to the prosecutor, so even a witness trying to be completely truthful can be prosecuted:

Studies will someday be done on the deleterious effect Donald Trump has had on the brains of people who loathe him. It drives them to say things that are as palpably foolish as some of the president’s own doozies. This week’s winner: There is no such thing as a “perjury trap.”

Because some of the people making this nonsensical claim are very smart, let’s stipulate that the heated moment we find ourselves in is driven by politics, not law or logic….

The theme the anti-Trump camp is pushing — again, a sweet-sounding political claim that defies real-world experience — is that an honest person has nothing to fear from a prosecutor. If you simply answer the questions truthfully, there is no possibility of a false-statements charge.

But see, for charging purposes, the witness who answers the questions does not get to decide whether they have been answered truthfully. That is up to the prosecutor who asks the questions. The honest person can make his best effort to provide truthful, accurate, and complete responses; but the interrogator’s evaluation, right or wrong, determines whether those responses warrant prosecution….

McCarthy’s example assume prosecutorial good faith.

I don’t assume that for the Mueller team, considering the legal team assembled and the tactics used so far.

So perjury trap or not, Trump should not sit down with Mueller. But if there were any doubt, the real likelihood of a perjury trap set specifically for Donald Trump is added reason.