Reports are in that President Trump plans to submit to interview with Jim Comey’s very good friend, Special Counsel Robert Mueller. Trump remarked that he would be interviewed under oath, and when asked if Mueller would be fair in the investigation responded, “[w]e’re gonna find out.”
Mr. President, you need not wait to find out, I can tell you the answer – he will not be fair. Any good lawyer would tell you not to participate in this interview as it places you and your presidency in serious jeopardy, and not because you did anything wrong.
First Thing We Do, Let’s Kill All The Lawyers
On February 27th, 2004, Judge Cedarbaum of the Federal District Court in Manhattan dismissed the only charge against Martha Stewart that wasn’t about her lying. On the charge of securities fraud, Cedarbaum ruled that “a reasonable juror could not, without resorting to speculation and surmise, find [guilt] beyond a reasonable doubt…” This means that after seeing all the evidence prosecutors could muster, and presenting their best arguments to the jury, it was not even possible for a fair juror to find Stewart guilty because there was zero evidence of guilt presented by the prosecution.
Why you might ask, were such novel charges brought in the first place? Is that fairness? You would have to ask James Comey, who prosecuted the case.
Stewart was convicted of the only charges left, and went to federal prison, for lying.
“Martha Stewart is being prosecuted not for who she is, but because of what she did.” – James Comey
On Monday, Feb. 4, 2003, Martha Stewart submitted to an interview with FBI agents. Stewart wasn’t placed under oath, and the conversation was neither recorded nor transcribed. You see, the FBI prefers NOT to record its interviews. This was not an aberration – the FBI has built its interview technique on the notion that the only accounts of its interviews will be its agents’ recollections. Famed civil liberties lawyer Harvey Silverglate calls it a “practice that allows the FBI to manipulate witnesses, manufacture convictions, and destroy justice as we once knew it.” It was on the strength of these notes that Stewart was indicted and convicted.
Pants On Fire
President Trump is frequently called a liar, and occasionally makes misstatements of facts. If you’re his supporter perhaps you think he’s just a “straight talker” from Queens, or that he’s a dealmaker and says what he needs to. If you oppose him or his agenda, perhaps you think he’s an inveterate liar or psychopath (for a superb discussion about Mr. Trump’s truthfulness, see this one between Sam Harris and Scott Adams). In either case, we know he does not dot all his i’s and cross his t’s with careful speech. This makes Trump an ideal candidate for a perjury prosecution brought by Mueller.
A perjury trap is when the FBI or prosecutors seek testimony or an interview not to gather information, but to prosecute the person making the statement with other evidence they have gathered. Does Donald Trump really have testimonial evidence that will surprise Mr. Mueller? Is there something he can say to simply help Mueller understand he didn’t do anything seriously wrong? Don’t bet on it. Mueller by now has every email, text, Facebook post, letter, tweet and phone call made. He can easily use this information to challenge Trump on any point.
Free Legal Advice – A Bargain At Twice The Price
Sure it will be a ridiculous charge. Ask Ms. Stewart how that worked out. The prudent course, the one that doesn’t give them the rope with which to hang you with, is to say “No, thank you” and decline this interview. I know it’s good advice for you because it’s good advice for everyone. Anything you say, can and will be used against you, is not just a line for T.V. shows – it’s true! If you do go, be sure and bring a recorder. That way it’s not just your word against the words and notes of the shiny FBI agents testifying against you to a D.C. based grand jury.
Speaking of these recordings, Mr. President, in 2014 the FBI was ordered by the DOJ to change its practice of recording interviews of persons in custody. This was too little too late. Mr. President, you are now in charge of the FBI. How about a new rule requiring what justice demands, that the Bureau use the latest technology in pursuit of justice, and not just agents and prosecutors’ goals? One change you can make unilaterally and immediately is to require them to memorialize all interviews with a voice recorder. They could start with you.