Compare the clownish, wholly unmeritorious efforts by House Republicans to draft articles of impeachment against Deputy Attorney General Rod Rosenstein (for signing off on FISA warrant applications that were approved multiple times by multiple judges?) with the four dozen or so questions special counsel Robert Mueller has prepared for President Donald Trump, as first reported by the New York Times.
The farcical impeachment scheme to rid themselves of Rosenstein demonstrates once more that House Republicans are unserious people who should not be entrusted with power. They - not Rosenstein or the FBI - are the ones who pose a threat to the impartial administration of justice. Mueller’s questions, by contrast, demonstrate that the right person is in the job to probe exactly the right questions: Was Trump privy to collusion between his campaign and Russia? Did he have corrupt intent necessary to prove he obstructed justice through a series of actions intended to impede an investigation into himself and his associates?
One can draw several conclusions from the questions.
First, it’s impossible to imagine Trump getting through an interview without contradicting himself or others’ whose testimony Mueller already has. Just as Trump’s public blather has given Mueller plenty of ammunition, he is bound to make incriminating statements. The questions are too numerous and detailed, and Trump’s self-control and attention span so limited, that one can expect him to melt down somewhere between “What did you know about phone calls that Mr. Flynn made with the Russian ambassador, Sergey I. Kislyak, in late December 2016?” and “What did you mean when you told Russian diplomats on May 10, 2017, that firing Mr. [James B.] Comey had taken the pressure off?”
Second, the questions, contrary to Trump’s assertions, suggest that collusion is very much on the table. Questions such as “When did you become aware of the Trump Tower meeting?” and “What knowledge did you have of any outreach by your campaign, including by Paul Manafort, to Russia about potential assistance to the campaign?” are designed to probe Trump’s awareness of the dozens of interactions between members of the Trump team and Russians during the campaign and transition. Mueller very well might have information from other witnesses that would contradict Trump if he decides to deny knowledge of Russian collaboration. A question such as “What communication did you have with Michael D. Cohen, Felix Sater and others, including foreign nationals, about Russian real estate developments during the campaign?” doesn’t come out of nowhere. The prosecutors have documents and a slew of other witness interviews that might give them a picture of Trump’s communications. Denying his involvement with others involved in plotting with Russians, in that case, will only serve to put Trump at risk of being charged with lying to the FBI.
Third, reporters, mimicking the White House spin, act as though Trump’s testimony is entirely optional. Given how specific the questions are and their obvious relevance to identifiable crimes (obstruction, witness tampering, illegal solicitation of foreign campaign assistance), Mueller would in all likelihood get a subpoena and find a judge to enforce it if Trump refused to testify. Trump would then find himself either in the entirely untenable legal position of refusing to abide by a court order or in the entirely untenable political position of taking the Fifth Amendment. The latter is his constitutional right, but as the chief of the executive branch who took an oath to take care that the laws are faithfully executed, Trump’s invoking the Fifth would be an acknowledgment that his personal interests conflict with his oath of office.
Fourth, Mueller clearly doesn’t buy the argument that the president cannot obstruct justice by exercising his constitutional authority (e.g. firing the FBI director). The questions are largely directed at determining whether Trump exercised his powers with corrupt intent. Did he fire Comey to protect himself from the Russia investigation? Did he craft a cover story about the June 2016 Trump Tower meeting with the intent to deceive the public and prosecutors? Those arguing Trump “can’t obstruct justice when he’s acting as president” will need a new rationale to defend the embattled president.
Fifth, if Mueller is bound by the standing Justice Department memo that concludes a sitting president cannot be indicted, Trump’s status as a subject, not a target, makes sense. The facts are already there, one might readily conclude, to make out a case for obstruction, so how could he not be a target? The answer: Trump cannot be a target since he is not (presently) capable of being indicted. If Mueller finds Trump did commit criminal acts, he can suggest in his report that impeachment is appropriate and/or recommend that Trump be indicted after he leaves office.
Sixth, there doesn’t seem to be a lot in Mueller’s questions that would go to financial crimes such as money-laundering. Perhaps these issues are not on Mueller’s radar screen (although they surely could be matters for federal and/or state prosecutors in New York). Alternatively, Mueller may be relying entirely on other evidence (e.g. bank records, Trump organization employees’ testimony) on which to base such charges. If there is potential liability there, Michael Cohen’s testimony is likely to be relevant; hence the raid on Cohen’s home, hotel and office might be essential to proving whatever financial crimes Trump may have committed.
In sum, rational observers looking at the list of questions will readily conclude that Mueller is well on his way to making a case for obstruction. As for collusion, the question seems to be not whether the Trump campaign was utilizing Russian help but whether Trump was aware of it.