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Should Trump Voluntarily Talk to Mueller?
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When federal prosecutors are nearing the end of criminal investigations, they often invite the subjects of those investigations to speak with them. The soon-to-be defendants are tempted to give their version of events to prosecutors, and prosecutors are looking to take the legal pulse of the subjects of their work. These invitations should always be declined, but they are not.

Special counsel Robert Mueller — who is investigating President Donald Trump for obstruction of justice, pre-presidential banking irregularities and conspiracy to solicit or receive campaign aid from foreign nationals (the latter is what the media erroneously call collusion) — has made it known to former New York Mayor Rudolph Giuliani, the head of Trump’s legal team, that he wants to speak to the president.

Should Trump voluntarily speak with Mueller? In a word: No. Here is the back story.

Though I have been critical of some judgment calls made by Giuliani in his representation of Trump, I recognize, like anyone who has watched him or worked with or against him, that Giuliani is a smart and experienced lawyer. He has prosecuted directly or indirectly more than 5,000 criminal cases. He knows the criminal justice system, and he understands the power of prosecutors.

Yet the advice of most criminal defense lawyers and legal commentators familiar with the situation in which Giuliani finds himself today is to keep his client far away from the prosecutors. Here’s why.

Thanks to Giuliani’s numerous television appearances during which he has forcefully defended his client, Giuliani and Mueller have engaged in a very public series of negotiations on the limits, if any, that they might agree to as ground rules for an interview of the president.

Giuliani wants to limit the subject of questions to the alleged conspiracy between Trump’s campaign and Russians. After all, he argues, this is the stated purpose given by the Department of Justice for starting the special counsel’s investigation. And he wants to limit the number of questions and the time for all questions and answers. He argues that the president’s constitutional obligations transcend the needs of Mueller’s probe.

Mueller argues that he has an ethical obligation to follow whatever evidence of criminal behavior lawfully comes into his hands, about the president or his colleagues. As such, because he does not know in advance what Trump’s answers to his questions will be, he cannot consent to any limitations on his follow-up questions.

If I were Giuliani, I would tell Mueller that the negotiations are terminated and the president will not voluntarily sit for an interview with him. There are paramount and prudential reasons for this.


First, when prosecutors want to talk to a person they are investigating, the talk is intended to help the prosecutors, not the subject of the investigation. So why should Trump engage in a process that could only help those pursuing him?
Second, the prosecutors know their evidence far better than the president or his legal team possibly could know it, and these prosecutors know how to trip up whomever they are interviewing. So why should Trump give prosecutors an opportunity to trap him into uttering a falsehood in an environment where doing so can be a criminal act?

I recognize that Giuliani’s client is the most powerful person on earth, someone who is accustomed to having his way followed. And he has said countless times that he wants to talk to Mueller. Yet President Trump does not use an economy of words. Experience teaches that the undisciplined use of words by the subject of a criminal investigation is a prosecutor’s dream when it takes place in an official inquiry.

It is Giuliani’s job to prevent that dream from becoming reality by convincing his client, perhaps through an aggressive mock question-and-answer session conducted by Giuliani himself, that no good for Trump could come from a Mueller interview. I have seen many criminal cases in which potential defendants who thought they could talk prosecutors out of an indictment tried to do so and made matters worse for themselves.
But there is an elephant in the room.

That elephant is a grand jury subpoena. The Mueller interview is voluntary. If Trump agreed to it, he would not be under oath, and he could consult with counsel during it. Also, he could leave it whenever he wished. A grand jury subpoena compels a person to testify. The testimony is under oath, takes place without counsel present and can go on for as long as prosecutors and the grand jurors want to question the person. And they can ask him any questions they want to ask.

Surely, Trump would challenge a subpoena before a federal district court, and the challenge might land in the Supreme Court. Yet the controlling case, United States v. Nixon, is a unanimous 1974 Supreme Court decision requiring President Richard Nixon to surrender his infamous Oval Office tapes.

Though not directly on the point of compelled presidential personal oral testimony, the language in the Nixon case and the values underlying it all favor enforcement of a subpoena requiring personal testimony by the president. When the Ken Starr grand jury served a subpoena for the president’s testimony on Bill Clinton, whose crimes it was investigating, Clinton and his lawyers concluded that he needed to comply with it, which he did.

Of course, Trump could accept the subpoena and then invoke his Fifth Amendment-protected right to silence. However, he once publicly said, “If you’re innocent, why are you taking the Fifth?” So such an invocation would be catastrophic politically, but it would legally insulate him from helping Mueller to prosecute him.

Another president once weighed in on dealings with bureaucrats and prosecutors. Ronald Reagan quipped many times that the nine most terrifying words in the English language are: “I’m from the government, and I’m here to help.” Mr. President, beware of prosecutors bearing invitations.

Copyright 2018 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Donald Trump, Russia 
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  1. Dan Hayes says:

    Does the voluntary Mueller interrogation preclude being followed by a grand jury subpoena?

    In other words, the worst of all possible worlds!

  2. Anonymous[120] • Disclaimer says:

    Trump should agree to talk, and his talk should be confused or unintelligible mixture of seemingly random words and phrases from which the listener cannot extract any meaning. Then he’d be on par with the legitimacy of this attempted soft coup.

    • Replies: @ThreeCranes
  3. Alfa158 says:

    Trump doesn’t even have to be caught lying. He can give an answer that is accurate or ambiguous, Mueller pulls up a contradictory answer to the question given by someone else, declares Trump was the one lying, and charges him with lying to the FBI and obstruction of justice. Mueller subscribes to the Lavrenti Beria school of prosecution: “Show me the man, and I’ll find you the crime”. Look at the FBI’s investigation of the anthrax attacks while Mueller was Director. They spent seven years ruining Steven Hatfill’s life, convinced that he was the guilty party and desperately trying to find evidence to arrest him, until someone gave them a lead to the real culprit.
    I was willing to give Mueller a chance on this, but after this much time and statements by the investigating team that there is no evidence of collusion, this has started smelling like a witch hunt.

  4. @Alfa158

    Good comment! At this point, anyone who talks to the FBI (the equivalent of Mueller IMHO) voluntarily is a complete fool–the number of process crime prosecutions (e.g., false statements to the FBI) where there was never any prosecution for an underlying offense ought to be a warning. If Trump voluntarily talks to Mueller, perhaps he is so clueless or arrogant that Pence might be a better alternative.

    Trump should announce that the only forum in which will submit to questioning is the House of Representatives if and when articles of impeachment are debated.

  5. Talk to Mueller? Yes of course. Trump should say to Mueller: You are fired.

  6. Wow. The preceeding comments amaze me. How is justice served when truth is suppressed?

  7. If Trump was the real deal he would have Muller arrested for his role in 9/11 coverup.

    Its a distraction. All of it.

  8. @Alfa158

    A witch hunt it is. And I agree with Judge Napolitano. Since Trump is under no legal obligation to comply with this “invitation” he should not do so for fear of walking into a stacked deck. If I were Trump, I would keep my big yap shut and let Giuliani do the talking in his capacity as counsel (with support in the media from such legal experts like Joe DiGenova, Alan Dershowitz and Andrew McCarthy).

  9. Corvinus says:

    “I was willing to give Mueller a chance on this, but after this much time and statements by the investigating team that there is no evidence of collusion, this has started smelling like a witch hunt.”

    You really need to be paying closer attention.

    • Replies: @Authenticjazzman
    , @eah
  10. @Corvinus

    Corvinus you are in over your head. A person with such limited insight and gripped with immature psychotic bias as yourself, is simply not endowed with the acumen required to understand these dimensions.

    Authenticjazzman “Mensa” qualified since 1973, airboren trained US Army vet, and pro Jazz artist.

    • Replies: @Corvinus
  11. Daniel H says:

    No. One should never speak to law enforcement, not even with a lawyer present. Trump is well within his rights not to speak, and he will be well within his smarts not to speak.

  12. Corvinus says:

    Disqualify, disqualify, disqualify.

  13. @Anonymous

    Agree. And in like manner we United States citizens could defeat NSA, FBI and CIA eavesdropping on us by larding every telephone conversation, every internet exchange with the words, “bomb”, “terror”, “assassinate”, etc. Provide so many red flags for the algorithm that filters potential threats that we overwhelm the system. Baffle ‘em with bullsnot.

  14. polistra says:

    It’s way too late for details. If Trump really wanted to drain the swamp, he would have arrested and jailed all current employees of FBI, plus most former employees, immediately after taking the oath of office. He would have sent them to Guantanamo because they are the true “terrorist masterminds”.

    He didn’t do this, so we know he had no intention of changing anything at all.

  15. His options are still open. Draining the swamp is not a short term project.

    The real question is the coming election about choosing people who will help with Trump’s agenda.

    Can you trust those, in your area, who are campaigning? Are those who say they support Trump truthful? Have you been fooled before?

    I think we can all answer yes to that.

  16. JimB says:

    How about drowning the Mueller team in such qualifying phrases as: “To the best of my recollection…;” “I seem to recall that…;” “At the time I was preoccupied with A so I’m not sure how accurate my knowledge of B is.” Trump can conclude by saying “Hey, being a successful billionaire is more complicated than any prosecutor can imagine. Since you aren’t as financially gifted as I am by a long shot, I’m afraid you can’t appreciate my position.”

    • Replies: @Joe Joe
  17. Joe Joe says:

    you forgot “that depends on what the meaning of ‘is’ is”

  18. JimB says:

    you forgot “that depends on what the meaning of ‘is’ is”

    A Muslim terrorist organization?

  19. APilgrim says:

    Mueller argues that he has an ethical obligation to …”

    We can stop reading, right there. Robert Mueller has no ethics or morals whatsoever.

    Nor does his buddy Rod Jay Rosenstein.

  20. anon[411] • Disclaimer says:

    Remember how the NYT tried to goad Trump into firing Muller? They double dared him.

    Trump is un-coachable and should avoid Muller. Let Muller create the ‘Constitutional crisis’ by over reaching. Muller is on the clock and its his move. You don’t cooperate with a witch hunt.

  21. Of course Trump should not talk to Muller. Given Trump’s lack of attention to detail, memory-loss isssues, and probably early stage dementia, it would be impossible to obtain any useful information from him anyway.

    It certainly would be interesting to find out more about whether the Russians really have some kind of secret blackmail hold over Trump and his sons, possibly to do with the Trump organization getting financial help from Russia at some point in time, but again they are unlikely to find out any useful information from Trump that cannot be obtained elsewhere.

    I would also imagine that Muller might be able to get hold of copies of Trump’s tax returns, which are not available to the public.

  22. eah says:

    Are we supposed to believe this was the result of ‘Russian collusion’? — that all those rubes in flyover country were taken in or swayed by ‘Russian collusion’? — go away.

    • Replies: @eah
  23. anonymous[340] • Disclaimer says:

    So, where went da “Judge”?

  24. APilgrim says:

    Sure, right after he fires the Son of a Bitch.


  25. Great piece on an important and complex issue, Judge.

    Agreed on your point that “taking the 5th”, (ie invoking one’s right to silence), will appear suspicious to many, at first blush, but that isn’t where it rests.

    When I was practicing, I used to drill my clients never to say anything. That was not always easy since innocent people do wish to speak up. However, any word or sentence spoken under stress can easily be misconstrued and if the words, themselves, cannot, the tone or speech pattern certainly can.

    My advice is always: say nothing and when the police/prosecutor inevitably goad you with “what do you have to hide?” respond: “I have nothing to hide – but something to protect – it’s called my privacy.”

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