'Don't Talk,' and Other Advice for Trump From White-Collar Lawyers
Media reports Monday indicated President Donald Trump may sit down for a voluntary interview with the special counsel's team within weeks.
January 09, 2018 at 02:34 PM
7 minute read
Special counsel Robert Mueller's legal team may interview President Donald Trump in the coming weeks, but several white-collar attorneys said that's the last thing Trump should do.
Media reports Monday said Mueller told Trump's legal team last month that he will likely seek an interview with the president. The Washington Post reported that interview could come soon, and that Trump believes such an interview could put an end to allegations of collusion between his campaign and Russians.
New from Law.com TRUMP WATCH Cogan Schneier is your guide to the Trump administration and its imprint on the law, breaking down the core issues on judge picks, policy shifts, court clashes and the Mueller investigation. Sign up here.For any client, several white-collar lawyers agreed a sit-down interview with the government should be avoided. But the president in particular has a tendency to speak off the cuff, increasing the chances he could lie to investigators. Mueller's team has already secured two guilty pleas former National Security Adviser Michael Flynn and Trump campaign adviser George Papadopolous for lying to investigators.
So what advice do white-collar and investigations lawyers have for Trump and his legal team? Here's what four attorneys had to say:
Don't do it: Every lawyer interviewed for this article said the obvious advice is Trump should not do a voluntary interview. An interview with law enforcement puts any client at risk of violating 18 USC §1001 for lying to investigators.
With a personality such as Trump's, that risk is increased. Peter Hardy, a former federal prosecutor and white-collar defense partner at Ballard Spahr, said that even if Trump's lawyers were able to negotiate terms for the interview, such as limiting the scope of questioning or handing over questions beforehand, he still would advise against a sit-down given Trump's penchant for exaggerating the truth and the potential consequences. His advice to Trump is simple: “Don't talk.”
“Even under the most controlled conditions, I would think twice, three times, four times, before allowing my client under those circumstances to talk to the government,” Hardy said. “You always have to think very, very hard about it. Particularly, if someone is hard to control.”
Others were more blunt about Trump's prospects.
“I've never had a client like [Trump] and I would hope that I never would,” said Peter Zeidenberg, a former federal prosecutor and partner in Arent Fox's white-collar and investigations practice. “If I were his lawyer, I would tell him don't do it. There's no way he can avoid perjuring himself.”
Negotiate: Trump's lawyers will certainly try to negotiate terms and conditions for any sit-down interview, and may even seek to have Trump submit answers to Mueller's questions in writing. Zeidenberg said such concessions on Mueller's part would be unheard of, and that “no prosecutor” would agree to that.
But Trump's team can still try. Sara Kropf, a criminal defense lawyer with her own firm in Washington, D.C., said federal prosecutors frequently sign a “queen for the day” agreement letter, ensuring anything an interviewee says during questioning cannot directly be used against them. However, those agreements do not mean the information can't be used at all.
Ross Garber, co-chairman of Shipman & Goodwin's government investigations and white-collar crime group, added there are other key points to negotiate, such as the timing or location of the interview. Trump's lawyers would want to ensure their client has enough time to prepare, and that the timing doesn't “unduly disrupt the president's ability to govern.” The same goes for location.
“Because he is the president, because he has a unique role in our constitutional system … and because he can potentially assert executive privilege in this case, it may be a different kind of negotiation yielding different results than in other cases,” Garber said.
Get the goods beforehand: Perhaps the most important concession Trump's team could secure would be for Mueller to agree to hand over key documents beforehand.
It's unclear how willing Mueller would be to adhere to such a request, though Trump may enjoy some deference as president. Giving Trump the chance to familiarize himself with any documents Mueller has would be crucial to avoid lying to investigators and to refresh his memory. The last thing a lawyer wants is for his client to make a statement, only to have a prosecutor then pull out a document that shows the statement is a lie, Hardy said.
“At the end of the day, most interviews in any complicated white-collar case are going to rise and fall on the documents,” he said.
Answer the questions: At this stage, it appears Trump would be voluntarily sitting for an interview. He could get up and leave any time, and can refuse to answer questions. But Kropf said she often advises clients against refusing to answer questions.
She said if a client wants to do an interview with government investigators, it's usually in an effort to clear their name. Refusing to answer questions, regardless of the reason, often raises suspicions instead of mitigating them.
“If clients are uncomfortable with certain topics, then it's a sign they shouldn't be interviewed,” she said.
But consider privilege: Garber, who has represented three Republican governors in impeachment proceedings, said one situation where he would advise Trump not to answer would be if a government investigator asked a question where privilege could be invoked. That includes executive privilege and attorney-client privilege, which could cover exchanges between Trump and his White House counsel, Don McGahn.
The U.S. Court of Appeals for the D.C. Circuit, where Mueller's grand jury is empaneled, and other appellate courts have ruled that government lawyers cannot claim attorney-client privilege to withhold information in investigations. However, the Second Circuit ruled in 2005 that a government lawyer did not have to testify before a federal grand jury about advice she gave to Connecticut Gov. John Rowland. Garber represented Rowland in that case, and noted that the issue has never reached the Supreme Court, so it could possibly still be litigated.
As for executive privilege, the Supreme Court ruled in United States v. Nixon that the president cannot claim executive privilege in criminal proceedings except in very narrow circumstances, such as in military or diplomatic areas. But Garber said that given the nature of Mueller's investigation, it's possible some questions, such as those about communications with Russia or other foreign powers, could qualify for that exception.
Either way, Garber said, it's something Trump and his lawyers should consider beforehand.
“You don't want to face those issues for the first time when the president is ready to be interviewed,” he said. “Here, I do think there are potentially meritorious and significant issues of executive privilege and attorney-client privilege.”
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