“Just so you understand, there’s been no collusion. There’s been no crime. And in theory, everybody tells me I’m not under investigation.”
So goes President Trump’s consistent refrain when asked about the Russia probe led by special counsel Robert S. Mueller III. But with the Trump and Mueller camps huddling to negotiate the terms of a possible interview, that’s about to change.
There is a special category of potential witness set out in the United States Attorneys’ Manual as a “target.” A target is a person whom the prosecutor is intending to charge, what the manual calls a “putative defendant.”
It is longstanding Department of Justice policy for prosecutors to inform a witness that he or she is a target, if asked.
Accordingly, any competent white-collar defense lawyer contemplating testimony will inquire: “Is my client a target?”
So now, in all likelihood, Trump lawyer Ty Cobb will ask Mueller if the president is a target, and Mueller will in all likelihood answer that he is.
“Mr. President,” Mueller will say, “you are a target for obstruction of justice charges.”
More specifically, Mueller will explain that the president’s in hot water for trying to stop former FBI Director James Comey from going after former national security advisor Michael Flynn.
If Trump testifies, he is unlikely to stave off the obstruction charges and quite likely to expose himself to some counts of perjury.
That’s where the path of this investigation directly points: Mueller has spoken to all the crucial witnesses except Trump, and has the full account from the two principals, namely Comey and Flynn.
That “target” statement would demolish Trump’s public stance, and completely alter the stakes for an interview.
How will Trump react?
He faces two basic problems. The first is that he can’t testify under oath. The second is that he must.
He can’t testify under oath because he has left a trail of patent lies and shifting accounts of central events, in particular Comey’s firing, which Mueller’s team will use to destroy his credibility. Moreover, there is strong evidence that Trump already knew Flynn had lied to the FBI when he told Comey, “He [Flynn] is a good guy. I hope you can let this go.”
Most ominously for Trump, he can’t testify because he is in the dark about all of the evidence that Mueller and the grand jury have already — in particular from Flynn, who is cooperating with the investigation. Not knowing what Flynn has testified to, Trump will be unable to maneuver around it.
All of which means that if he testifies, he is unlikely to stave off the obstruction charges and quite likely to expose himself to some counts of perjury. And while his defenders in Congress might try to pooh-pooh the obstruction as old news, or the product of Mueller’s bias, they will be hard-pressed after the Clinton impeachment to defend Trump against perjury charges.
But Trump can’t stay quiet, either, because he has to provide a good reason for Mueller to stay his hand. That means on-the-record testimony — offering in his own words some persuasive exculpatory account. Presumably that would entail copping to Comey’s version of events, and admitting that he has been lying all along (something that’s hard to deny when you tell multiple versions of the same story), but insisting that he lacked the required corrupt intent for obstruction.
For example, he might try to sell the account that he acted to shut down the investigation not to shield himself, his family and his associates but because he believed it was a meritless witch hunt and a waste of resources.
Besides, if Trump tries to avoid an interview, Mueller is likely to seek a subpoena to force his testimony. And the courts are very likely to uphold the subpoena under the authority of cases involving Presidents Nixon and Clinton. Trump will have sustained a crucial, deflating loss at the hands of the judiciary, and his legal choices will have narrowed to testifying or taking the 5th Amendment.
So Trump has to testify to have any chance of staving off charges. But Trump can’t testify because he will only add additional counts to the obstruction charges. Zugzwang.
Harry Litman, a former U.S. attorney and deputy assistant attorney general, teaches at the UCSD school of political science and practices law at Constantine Cannon. @harrylitman