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Tuesday, March 26 , 2019, 1:49 pm | Partly Cloudy 64º


Susan Estrich: Leaking The List

It is "so disgraceful," the president said.

He was referring to the leaking of the list of 49 questions that special counsel Robert Mueller reportedly wants to ask the president, questions his office supposedly provided to the president's lawyers in an effort to convince the president to sit for an interview.

The president's lawyer, for all kinds of lawyerly reasons, was not convinced. After looking at the list, he urged the president to decline the invitation.

The president's lawyer did not convince the president, and he was, very shortly thereafter, not the president's lawyer.

The old saying about the lawyer who represents himself having a fool for a client should have a corollary for clients who listen to themselves and not their lawyers; in that case, the client is only a fool.

The reason the president's lawyer did not want him to be interviewed is apparent from the breadth of the open-ended questions. For the most disciplined witness, this would be a challenging interview, not one anyone would put a client through entirely "voluntarily."

For this president, the tweeter in chief, whose reputation for accuracy is not strong, it's a minefield.

Anything false you say to a federal official — which is to say, anyone in the room in an interview like this — is a felony. And every "false statement" is a separate felony. No need for anything to be under oath. A false statement can be a "yes" or a "no."

Unlike a grand jury room, where secrecy is sacrosanct, an interview in the West Wing is likely to be controlled chaos, a room full of lawyers, FBI agents, paralegals with boxes, people in and out with messages.

Of course, no one is required to sit for an interview with prosecutors voluntarily. The special counsel could issue a subpoena for the president to appear before a grand jury (memories of Ken Starr overstepping) and then negotiate from there, but it's far better for Mueller if the president agrees.

That's why his prosecutors provided the list to the White House: So Trump could prepare. Theoretically.

As for why someone in Trump's circle (though not a member of his "legal team," according to The New York Times) might have given the list to The New York Times: Consider that Donald Trump would never admit that anything is beyond him, especially not an interview.

He can be excused for thinking he can talk his way out of anything because, to date, he pretty much has. But he's wrong to think the Department of Justice works for him when it's the executive branch they're investigating.

Justice is the one Cabinet department that can put people in prison and put a president out of office. Don't take my word for it. Ask the Republicans in the Senate what will happen if Trump tries to fire the special counsel.

My guess is some of the folks around Trump are afraid of what Mueller could do to this president in an interview controlled by the prosecutor.

If their boss won't listen to them (and he often doesn't), and he won't listen to his lawyers (which is why he has to keep hiring new ones), then maybe he will listen to The New York Times, whose front-page story focused on the breadth of the questions.

Which would have been what whoever leaked it wanted.

The only problem is, this president is more likely to see those headlines as a dare than a warning. Being on the president's team is not an easy job, and not likely to get any easier in the days ahead. The leak of the list may just be the latest sign of their desperation.

Susan Estrich is a best-selling author, the Robert Kingsley Professor of Law and Political Science at the USC Law Center and was campaign manager for 1988 Democratic presidential nominee Michael Dukakis. Click here to contact her or click here to read previous columns. The opinions expressed are her own.

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