Chip Somodevilla/Getty Law And Order Mueller’s Questions Ought to Frighten Trump The special counsel is playing it straight. For the president, that’s exactly the problem.

Norman Eisen, a senior fellow at the Brookings Institution, was the chief White House ethics lawyer from 2009 to 2011 and ambassador to the Czech Republic from 2011 to 2014. Noah Bookbinder is executive director of Citizens for Responsibility and Ethics in Washington (CREW) and is a former federal prosecutor who handled public corruption cases and Senate. Barry Berke is a white-collar criminal defense lawyer and co-chairman of the litigation department at Kramer Levin Naftalis & Frankel LLP.

Special Counsel Robert Mueller’s team has given President Trump a list of questions for an interview, and the president—should he agree to sit for questioning—is in for the toughest exam of his life. By providing the president’s legal team with advance notice of these questions, Mueller has made clear that he has no interest in a game of “gotcha.” Instead, his investigators have prepared a fair interview for the president that includes simple, direct questions about his words and deeds.

The trouble for Trump and his legal team is that the president will place himself in even greater legal jeopardy unless his answers to these questions are both innocent and true.


Many of the questions aim to shed light on the issue at the heart of the inquiry into the president’s possible obstruction of justice: whether he acted with corrupt intent. What were his motives in firing FBI Director James Comey, and were they pure or tainted by the wrongful desire to shield his associates or himself from liability? When Trump reportedly told Russian officials after he fired Comey, “I faced great pressure because of Russia. That’s taken off,” was he advocating neutral policy concerns or protecting himself from personal exposure? Was the aim of the president’s tweets and comments threatening Comey to intimidate a witness or simply editorial commentary? Trump will need to not only provide innocent explanations to all of these questions, but also address the pattern of his actions, which otherwise appears damning.

Other questions drive at the “collusion” issue by echoing Republican Senator Howard Baker’s famous question in the Watergate hearings: What did the president know and when did he know it? If there truly was no collusion, as the president incessantly claims, then this question should be a softball, particularly since Mueller has told the president the exact pitches that are coming. Here too, however, problems lie for Trump. The president will need to explain how it is possible that he did not know about any of the 70 or more contacts his associates had with Russians during and after the campaign; or that the president only learned last summer about the June 9, 2016, Trump Tower meeting that his campaign chair Paul Manafort, his son Donald Trump Jr., and his son-in-law Jared Kushner took with the Russians. Mueller’s questions show that the investigation of conspiracy and other offenses that could fall under the label of “collusion” is very much alive, no matter what House Republicans think.

With respect to both these areas of questioning, President Trump is in a bind of his own making. By volunteering straightforward answers about his conduct, he risks strengthening the case that he obstructed justice and implicating himself in the campaign’s possible conspiracy with Russia. If Trump lies to investigators, he risks prosecution for knowingly making a false statement to federal agents—the same offense to which his former associates Michael Flynn, George Papadopolous and Rick Gates have already pleaded guilty.

The president is, of course, not required to volunteer his testimony. The problem is that the choice is not his alone to make. Special Counsel Mueller may well do what Independent Counsel Ken Starr ultimately did and seek to compel Trump to testify before a grand jury. (President Clinton relented after the subpoena was served.) If that happens, the president could try to challenge it legally, but he will fail. Although courts have been sensitive to a sitting president’s need for special accommodations and deference when he is subjected to civil and criminal matters, they have rejected claims that the president is beyond the reach of the law.

Confronted with the compulsion to testify, or indeed, at any point, President Trump does have another option available—asserting his Fifth Amendment right against self-incrimination. Normally it is difficult for public officials to exercise this option. President Trump has taken an oath to take care that the laws are faithfully executed, and it is hard to see how refusing to answer a federal investigator’s questions is consistent with that oath.

But nothing Trump does is normal, and we cannot rule out his taking the Fifth. The effect might be to increase the risk that Mueller names the president as an unindicted co-conspirator, or even indicts him. While current Justice Department policy suggests that a sitting president cannot be indicted, the department has never addressed these extraordinary circumstances, and the special counsel might ask the department to change its position. Failing that, a Fifth Amendment assertion could be devastating to the president when taken together with the substantial evidence of obstruction likely to be set forth in the report Mueller is said to be preparing for Congress. As an elected official, Trump must answer to that body and to voters, who will be left to draw negative inferences from the questions he declines to answer on self-incrimination grounds.

The idea that no person is above the law is central to our republic. The president enjoys no special immunity from accountability for interfering with our system of justice or the sanctity of our electoral process. Instead, like any other subject of an investigation, Trump is entitled to a fair and evenhanded evaluation of his conduct. Mueller’s questions indicate that he is getting just that. If providing truthful answers to those questions does not set the president free from further scrutiny, he has only himself to blame.