Trump Walking and Talking

A question was posed by an honorable Nebraska fellow as to how an old trench lawyer might view the efficacy of a president having a chat with a special counsel charged with investigating him. While I may lack the inscrutable tactical acumen of former United States Attorney, Rudy Giuliani, who foretold that he would have this wrapped up* in “a week or two,” a few considerations come to mind.

It’s often beneficial to agree to an interview.** It allows a target or subject the opportunity to do so at his relative convenience and to fully prepare in advance for the interview. There is much to be gleaned from the questions asked, the tone of the interrogation, even the people at the table. Everything from who does the questioning to the “tells” of those taking notes provides insight into what they’re truly interested in, what they’re trying to get out.

Understand that there are invariably questions posed which they already know the answer to, or at least believe they do, so as to create the “perjury trap.” Often, these questions are posed in a tricky way, often overbroad or impossible to answer with complete accuracy. Any crack in the response can be exploited as a lie by a reasonably competent prosecutor. Still, knowing this going in makes it far easier to address.

Since it’s a voluntary interview, done with the informality of a nice talk across a big table, there are two huge benefits for the defense. There is opportunity for discussion, for questions, when a question is posed. If the question is overbroad, the lawyer can raise the point, jumping in to challenge the question and ask the interrogator to narrow it, to provide meaningful time frames or limitations so that the question is answerable.

More significantly, the defense lawyer can do a Nancy Reagan and just say no. It’s a voluntary interview, and if a question is posed that the lawyer deems either inappropriate or potentially disastrous, he can tell the interrogator so and direct his client not to answer. Whether it’s a “leap to your feet and scream j’accuse” situation or a calm, “well, that’s a question that we believe to be improper,” the opportunity is there.

Does that mean you’ve just undermined the entire purpose of the interview, a grand jury subpoena pushed across the table? Not at all. There will be a great many questions posed, and perhaps a few refused. Is it worth it to go nuclear? Has there been more than sufficient cooperation that a few refused questions won’t make the other side escalate the situation? Can they refine their question, their tone, such that they can get the information they seek without asking it in such an accusatory or problematic way? Usually so.

And what if things do get out of control, a meltdown or two by angry prosecutors at their subject’s intransigence when they really want answers? Often, it’s just a game being played, such as threats made of dire consequences for refusal to comply. They have the subect’s attention, and get to poke their victim without being filtered through his lawyer. Does he really want to spend the rest of his life in prison? Maybe a prison rape story, or discussion of the health benefits of Nutriloaf?

This is where the defense lawyer can do his magic, calling out the obvious effort to scare the subject into acquiescing. Prosecutorial threats are a well-worn method of getting people to do, to say, what they want. Defense lawyers have heard it all before and aren’t particularly inclined to start shaking uncontrollably. More to the point, they stare into the eyes of the tough, flea-bitten prosecutor and tell him to do whatever he’s got to do. That’s where they back down, turn down the volume from eleven, because the defense has a nuclear option of its own.

The defense lawyer slowly rises from his seat, grabs his briefcase and announces, “we’re done.” As the subject’s presence is voluntary, the defense can end the interview whenever it wants. Play the game too hard and they walk away. Bear in mind, the prosecution wants that free interview more than the defense does, and they get nothing if the subject walks out the door.

There are a few conditions that make a voluntary interview a sound tactical choice: that the subject is teachable as to how to answer questions, will follow directions, most importantly to stop talking when the lawyer’s mouth opens, and not lie. Can the subject control his impulses? Can the subject express himself in reasonably comprehensible terms? Can the subject stop talking when told to stop talking?

These are all surprising difficult questions for the best of clients under the best of circumstances. No matter how much time and effort is put into preparing a client, there will be mistakes made. There always are. But most are willing and able to follow instructions, to learn, to listen, to let their lawyer do his job.

So will this work for Donald Trump?

*Bob Mueller would have to be made of ice to resist Rudy’s warmth and charm.

**Most voluntary interviews include a “proffer agreement,” what we delightfully call a “Queen for a Day,” which precludes the affirmative use of anything said during the interview, but does not protect the subject from lies or use of his statements should he testify differently later. Whether Trump would get a Queen for a Day is unclear, given that we’re in relatively virgin territory interrogating a president.

17 comments on “Trump Walking and Talking

    1. SHG Post author

      When I posted initially, I neglected to mention the proffer agreement, so I had to add it in afterward. So much of this is stuff that’s just taken for granted, but upon reflection, I realize that while the rest of us would never consider going in without a Queen for a Day, but would that apply to a president? Who knows?

      1. B. McLeod

        Well, we have a constitutional prohibition against titles of nobility. I don’t think he can even be ‘Possum Queen.

        1. wilbur

          He has to run for it.
          I remember when Granny ran against Mizz Drysdale for Possum Queen of Beverly Hills. The rough-hewn, plain-spoken outsider versus the Dark State.

  1. wilbur

    It would interesting to know how many times Trump has been civilly deposed or actually testified in court, and how he handled it.

    I’d try to research it, but it’s not THAT interesting.

    1. SHG Post author

      That’s a very interesting question, but even so, that was before he was Ruler of the Universe. That sort of thing can mess with your head and make you believe you’re invincible, especially you start out with an amoral, ignorant, pathologically narcissistic personality.

    2. TinMan

      At risk of soiling this wonderful blawg (and receiving a deserved ear cuffing), I offer these humble gifts:

      [Ed. Note: No.]

      [Ed. Note: Hell, no.]

  2. losingtrader

    “especially you start out with an amoral, ignorant, pathologically narcissistic personality.”

    Even though you refused to state it at the time, I’m just now beginning to believe I might know who you voted for in the presidential election.

    As to Queen for the day, perhaps we both know someone who may disagree with you and has written a short treatise on the subject:
    “Queen For A Day: The Dangerous Game of Proffers, Proffer Agreements and Proffer Letters”

    But, maybe I’m misunderstanding Mr Wisenberg’s position.

      1. losingtrader

        Then I misunderstood, as I did when I first saw, “Queen for a Day” and thought it had to do with being bi-curious.

  3. Jake

    “So will this work for Donald Trump?”

    My predictions are:

    1. He’s going to take the voluntary interview.
    2. The interview will not go well, from a legal perspective.
    3. The tapes of the interview will be ‘leaked’.
    4. 40% of the country will suddenly care about prosecutorial overreach.

  4. Brenda Rossini

    My late boss, Julius Lucius Echeles, almost threw me through the plate glass window when I made idiotic nice at an interview in addition to blowing our client’s case. “They are NOT your friends,” he hollered, and I never again veered from that recognition.

    1. SHG Post author

      Good advice. We may try to play nice, for tactical purposes, but they are not our friends no matter how many air kisses they blow at us.

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